Qass 




Book, .Fg 



Ci^yiiglit}^^.- 






CQEXRIGIfr DEFQS1& 



CASES 



ON 



AMERICAN CONSTlTiinONAL LAW. 



EDITED BY 



r 



ARL EVANS BOYD, PH.D. 



CHICAGO: 

CALLAG1I.\N' & COMPANY 

PTHTJSHERS, 

1898. 



Enttreil accoi ling t. . . i <.f ■ •(.r..--r. •?.=. in the y-ar 189S. 

By CALI.-v l.A.V & C'C^XlP.vNY, 

III the Ottkf of tlu Lil-raria .f Cc ij;ro-s, :it Wfishinglori. D. C. 



'"•inpopltiCH hy 
The IJri.w ti-fooper Typfs.tni.j; 
O.J iS •• 



PREFACE. 



In making this collection of cases, it was not my purpose to at- 
tempt to rival tlie notable collection of Professor Thayer. I have 
had the more modest design o'f bringing together within the com- 
pass of a single volume a sufficient number of the leading decisions 
• of the Supreme Court of the United States on constitutional law to 
form the basis of a university course in that subject. The so-called 
"case system" of study is applied to almost all branches of the law, 
but its application to constitutional law has been retarded by the 
obvious impractical3ility of referring a class to the original reports 
and by the want of a suitable case book of moderate size. It is to 
meet siich requirements that this collection has been formed. 
■ A work of this kind is necessarily a compromise between the de- 
sirable and the attainable. The exigencies of space have compelled 
me to exclude numerous instructive decisions which many persons 
may expect to find and which I would have been glad to print. For 
the further economy of space, arguments have been omitted 
and the notes are few. It seemed that the pages required for these 
features could be more profitably devoted to decisions which must 
otherwise be excluded. 

As to the text of the cases, all the decisions from December 
Term, 1855, (18 Howard), have been taken from the official reports. 
Cases decided before 18 Howard are taken from Curtis' Decisions 
of the Supreme Court of the United States. The cases are re- 
printed verbatim et literatim except that certain parts, particularly 
statements of facts, have been shortened, and matter not necessary 

iil 



iv PREFACE, 

to tlie elucidation of the constitutional question involved has l^^en 
omitted. These changes have been indicated in the usual man'iei'- 

The date which has heen assigned to each decision is, as a tiu% 
the 5^ear in -which the term began at which the decision was made<. 
This applies to all the cases decided prior to October Term, 1882, 
(108 U. S.), except the Dred Scott case, the Prize Cases. Hepburn 
V. Griswold, and the Legfl Tender Cases. The relation of these 
decisions to contemporary affairs made their exact date important. 
It is to be regretted that the Eeports of the Supreme Court prior 
to 1882 do not indicate the day on which each decision was 
rendered. 

Professor Thayer has greatly facilitated my work by permitting 
me to use the sheets of his (^ases as manuscript for the printer. It 
is also due to him to say tha"; I was familiar with his comprehensive 
collection long before I began making this one. How far this 
fact may have influenced my selection of cases and my method of 
treating them cannot be determined. A general acknowledgment 
of indebtedness must theiefore suffice. In this connection, I 
would also express my obligations for the many helpful suggestions 
whieb I have received fron. Head Professor Judson and Dr. Ernst 
Freund of the University «:if Chicago. 

GAEL EYAXS BOYD. 

Chicago, April 25, 189S. 



TABLE OF CONTENTS. 



I. THE VALIDITY OF LEGISLATION— 

Marbury v. Madison /. * 17 



1- 



II. TAXATION— 
Hylt(rn V. United States .^ 26 

•^McCulloch V. Maryland. ...7.7^. Z2' 

Weston V. Charleston 41 

License Tax Cases 45 

Crandall v. Nevada ^ X 49 

. Veazie Bank v. Fenno 5^- 

'^ The Collector v. Day 64 

State Tonnage Tax Cases 69 

Loan Association v. Topeka 78 

Springer v. United States 85 

Pollock V. Farmers' Loan and Trust Co 91 

III. MONEY— 

Craig V. Missouri 101 

Briscoe v. Bank of Kentucky 108 

Hepburn v. Griswold 118 

Legal Tender Cases 136 

Juilliard v. Greenman 157 

IV. COMMERCE— 

Gibbons v. Ogden \k?'. 172 

Brown v. Maryland Z3 192 

License Cases 204 

Passenger Cases I-.'-. } 219 

Cooley V. Wardens of the Port 235 

Case of the State Freight Tax 246 

Pensacola Telegraph Co. v. Western Union Telegraph Co.. 255 

Gloucester Ferry Co, v. Pennsylvania 259 

Leisy v. Hardin 269 

Minnesota v. Barber 281 

V. THE POLICE POWER— 

Munn V. Illinois 2S9 ''' 

Escanaba Co. v. Chicago 2i)9 

VI. GENERAL (IMPLIED) POWERS— 
J, v' McCullocB V. Maryland 1^ 308 '" 



/ 



vi TABLE OF CONTENTS. 

VII. EXECUTIVE powers- 

Ex parte Garlarsa. 324 

In re Neagle '-! t 325 

VIII. WAR.— MARTIAL LAW— 

Martin v. Mott , 338 

The Prize Cases ■' 342 

- Ex parte Milligan 351 

IX. EX POST FACTO LAWS ANIt BILLS OF ATTAINDER— 

Calder v. Bull 372 

Cummings Y- Missouri 381 

X. IMPAIRMENT OF CONTRACTS— 

Fletclior v. Peck 395 

— ^turges V. Crowninshield 405 

■^' Dartmouth College v. Wooiv/ard. .'^■^ 412 

OgAen V. Saunders .'<v 431 

Charles River Bridge v. Warren Bridge 451 

XL CIVIL AND POLITICAL RIGHTS— 

V Barron v. Baltimore r.^ 467 

^_^J!><gcott V. Sandford 471 

Slaughter House Cases * 491 

Strauder v. West Virginia 511 

Civil Rights Cases 518 

>k Hurtado v. California ; 534 

United States v. Kagama 543 

XII. THE FEDERAL G0VERN:VIENT AND THE STATES— 

^' Texas v. White 552 

Tarble's Case 563 

Ex parte Siebold %A 571 

XIII. INTERNATIONAL RELATIONS.— INDIAN AFFAIRS— 

American Insurance Co. v. Canter 583 

Cherokee Nation v. Georgia 584 

Worcester v. Georgia 590 

Fong Yue Ting v. United States 595 

XIV. JURISDICTION OF THE FEDERAL COURTS— 

" Chishpim v. Georgia 603 

Martin v. Hunter s Lessee 616 

/ Cohens v. Virginia. . .2^.^ 627 

United States v. Texas 637 

f POLITICAL QUESTIONS— 
Luther v. .Bcrde a ;••? .^. 647 
Mississippi v. Acdrew Johnson.- 652 

XVI. ENFORCEMENT OF EXECUTIVE POWER BY JUDICIAL 
PROCESS— 

In re Debs 659 



TABLE OF CASES. 



Able nan v. Booth 56f 568 

Alab ima v. Georgia 640 

Aldrutt V. luglis 292 

Alexander v. Railroad 1 ,75 

Alle 1 V. Inhabitants of Jay 81 

Aim / V. California 253 

American Ins. Co. v. Canter.. 

547 583 

Amy Warwick, The 342 

Aps'ien v. Austin 151 

Assignees of Topham v. Chap- 
man 446 

Austria v. Day 168 



Baker v. Wheaton 

Bal'antine v. Golding 

Bank v. Supervisors 

of Columbia v. Okely 

of Commerce v. New York 
City 

of Kentucky v. Wistar 

of U. S. V. Planters-' Bank. 

Banks v. Mayor 

Bank Tax Case 

Barbier v. Connolly 

Barrington v. Potter 

Barron v, Baltimore 

Bartemeyer v. Iowa 

Bayard v. Singleton 

Beaty v. Lessee of Knowles... 

Beer Co. v. Massachusetts 

Benedict v. Vanderbilt 

Bolt V. Stennett 

Bonham's Case 

Bowman v. C. & N. W. Rail- 
way Co 273, 276, 

Bowman v. Middleton 

Boyle V. Reading R. R. Co 

Brilliante, The 



Briscoe v. Dank of Kentucky. 

108, 155. 169 

Bronson V. Rodes 120, 122 

Brown v. Houston 271, 278 

V. Levee Commissioners.. 542 

V. Piper 283 

V. Maryland ....54,76, 192, 
206, 208, 210, 220. 270, 

272, 273, 279 

V. United States 34V 

Burrows v. Jamineau 447 

Butler V. Horwitz 120 



446 Calder v. Bull 372 

445 Camden V. Allen 84 

166 Chae Chan Ping v. United 

537 States 596, 601 

Charles River Bridge v. War- 

247 ren Bridge 451 

117 Cherokee Nation v. Georgia 
117 547, 549, 584, 638, 639 

166 Chirac v. Chirac 217 

247 Chisholm v. Georgia 603 

307 City of New York v. Miln 
151 216, 220, 224, 495 

467 Civil Rights Cases 518 , 

278 Clarke v. P. W. & B. R. R. Co. 249 

24 Coffin V. Landis 151 

459 Cohens V. Virginia 139, 239, 

278 356, 595, 627, 642 
75 Collector v. Day 64 

293 Commonwealth v. Alger 494 

539 V. Caton 24 

V. Smith 137 

279 Cook V. Pennsylvania 277 

24 Cooley v. Board of Wardens 

i48 52, 75, 235, 252, 271, 307, 572 

542 Corfield v. Coryell 505 

vii 



TABLE OF CASES. 



Paul V. Virginia 261, 506 

Pearson v. International Dis- 
tillery ; 279 

Peirce v. New Hampsliire. .204, 276 
Pennsylvania v. Standard Oil 

Co " 263 

Pensacola Telegraph Co. v. 
Western Union Tel. 

Co 255 

People V. Compagnie Generale 

Transatlantique 282 

V. Salem 83 

Permoli v. First Municipality. 305 

Perry v. Ton-ence 72 

Phillips V. Detroit 283 

V. Hunter 446 

Poindexter V. Greenhow 98 

Pollard's Lessee v. Hagan 305 

Pollock V. Farmers' Loan & 

Trust Co 91 

Pound V. Turck 3C3 

Pray V. Northern Liberties. . . 84 

Prigg V. Pennsylvania 239, 517 

Prize Cases, The 342 

Providence Bank v. Billings & 

Pittman 459 

Provident Bank v. Massachu- 
setts 247 



Railroad Co. v. Husen 270, 


277 


V. Johnson 


160 


V. Pennsylvania 


■'6? 


Reading Railroad Co. v. Penn- 




sylvania 246. 


1165 


Rhode Island v. Massachusetts 




640, 


645 


Robbins v. Shelby Taxing Dis- 




trict 270, 271, 277, 


286 


RoMnson v. Memphis & Char- 




leston R. R. Co... 518, 




519, 


53? 


Rowan v. The State 


53!5 


Rutgers v. V/addington 


24 



Santissima Triaidad, The 346 

Sa4;terlee v. Matthewson 454 

St. Louis V. The Ferry Co 263 

Scholey v. Rew 89, 90 

Searight v. Calbraith 170 



Sennot v. Davenport 72 

Sharpless v. Mayor of Phila- 
delphia 81, 82, 84 

Slaughter-House Cases. . . .307, . 
491, 513, 516 

Smith V. Alabama 278 

V. Shaw 369 

V. Turner 219, 231 

Society for Saving v. Coite.76, 247 

Soon Hing v. Crowley 282 

Spraigue v. Thompson 98 

Sp;'inger v. United States 85 

Springfield Bank v. Merrick. . 107 
State Freight Tax Case... 246, 

277, 286 
State Tax on Railway Gross 

Receipts 298 

State Tonnage Tax Cases 69 

State V. Charleston 75 

V. Starling 536 

V. Wapello Co 82 

Steamship Co. v. Port Ward- 
ens 74, 265 

Stourbridge Canal v. Wheeling 457 
Straler v. Graham. .. .483, 484, 486 

Strauder v. West Virginia 511 

Stuart V. Laird 239 

Sturges V. Crowninshield. .164, 
217, 220, 243, 405, 432, 
434, 439. 444 



Tarble's Case 563 

Tennessee v. Davis 331, 517 

Texas v. White 156, 552 

Thames Bank v. Lovell 266 

Thorpe v. Rutland & Burling 

ton R. R. Co 290, 495 

Thurlow V. Massachusetts 204 

Towboat Co. v. Bordelon 75 

Transportation Co. v. Parkers- 
burg 269, 278 

Trevett v. Weeden 24 

Turner v. Maryland .274 



United States v. Arredondo... 

459, 638, 639 
v. Bell Telephone Co 664 



TABLE OF CASES. 



XI 



United States v. Booth 565, 5C8 

V. Cruikshank 522, 576 

V. Daniel 355 

V. DeWitt 495 

V. Fisher 162 

V. Harris 527 

V. Holliday 657 

V. Hughes 335 

V. Kagama 543 

V. Marigold 142, 148, 575 

V. Nichols 518, 519 

V. North Carolina 642 

V. Reese 517 

V. Rogers 547 

V. Ryan 518, 519, 533 

V. San Jacinto Tin Oo.334, 664 

V. Singleton 518, 519 

V. Stanley 518, 519 

V. Texas 637 

Bank v. Bank of Georgia. 166 

Vanderbilt v. Adams 266 

Vanderheyden v. Young 341 

.Veazie Bank v. Fenno 56, 

68, 89, 147, 166, 167 

Vickshurg v. Tobin 269 

Virginia v. Rives 522 

V, West Virginia 640 



Wabash, St. Louis, &c.. Rail- 
way V. Illinois 271, 277 

Walker v. Savinet 540 

Walling V. Michigan. .270. 278, 285 

Ward V. Maryland 505 

V. Smith 166 

Warren v. Charlestown 98 

Watson V. Bourne 446 

V. Mercer 455 

Webber v. Virginia 278 

Wells V. Nickles 334 

Welton V. Missouri... _261^ 17^^304 

Westervelt v. Gregg.. 536 

Weston V. Charleston. . .41, 54, 

64, 76, 166, 356 
Whiting V. Fond du Lac... 81, 

82, 83, 84 

Whitney v. Robertson 601 

Williams v. Suffolk Ins. Co. . . . 658 
W'illson V. Blackbird Creek 

Marsh Co 216, 217, 

220, 239, 503 

Winney v. Whitesides 488 

Wisconsin v. Pelican Ins. Co. 

640, 643 
Wong Quan v. United States.. 595 

Woodruf V. Parham 253 

Worcester v. Georgia. .549, 551, 590 
Workman v. Miflain 152 



/ 



ON 

AMERICAN CONSTITUTIONAL LAW. 



THE CONSTITUTION OF THE UNITED STATES. 



^ We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defense, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States of 
America. 

AETICLE I. 

SECTION I. 

^ All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate 
and House of Eepresentatives. 

SECTION II. 

^ The House of Eepresentatives shall be composed of members 
chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications requi- 
site for electors of the most numerous branch of the State legis- 
lature. 

■* No person shall be a Eepresentative who shall not have at- 
tained the age of twenty-five years, and been seven years a citizen 
of the United States, and who shall not, when elected, be an 
inhabitant of that State in which he shall be chosen. 

^ Eepresentatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective numbers, which shall be determined 
by adding to the whole number of free persons, including those 
bound to service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The actual enumeration 

1 



2 THE CONSTITUTION OF THE UNITED STATES. 

shall be made within tliree years after the first meeting of the 
Congress of the United States, and witliin every subsequent term 
of ten years, in sucli manner as they shall by law direct. The 
number of Kepresentatives shall not exceed one for every thirty 
thousand, but each State shall have at least one Eepresentative; 
and until such enumeration shall be made, the State of New 
Hampshire shall be entitled to choose three, Massachusetts eight, 
Rhode Island and Providence Plantations one, Connecticut five, 
New York six, New Jersey four, Pennsylvania eight, Delaware 
one, Maryland six, Virginia ten, North Carolina five. South Caro- 
lina five, and Georgia three. 

® When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill 
such vacancies. 

■^ The House of Eepresentatives shall choose their Speaker and 
other officers, and shall have the sole power of impeachment. 

SECTION III. 

® The Senate of the United States shall be composed of two 
Senators from each State, chosen by the legislature thereof, for 
six years; and each Senator shall have one vote. 

^ Immediately after they shall be assembled in consequence 
of the first election, they shall be divided as equally as may be 
into three classes. The seats of the Senators of the first class 
shall be vacated at the expiration of the second year; of the second 
class, at the expiration of the fourth year, and of the third class, 
at the expiration of the sixth year, so that one-third may be chosen 
every second year; and if vacancies happen by resignation or 
otherwise during the recess of the legislature of any State, the 
executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies. 

^° No person shall be a Senator who shall not have attained 
to the age of thirty years, and been nine 3^ears a citizen of the 
United StateSj, and who shall not, when elected, be an inhabitant 
of that State for which he shall be chosen. 

^^ The Vice-President of the United States shall be President 
of the Senate, but shall have no vote, unless they be equally 
divided. 

^- The Senate shall choose their other officers, and also a Presi- 
dent pro tempore in the absence of the Vice-President, or when 
he shall exercise the office of President of the United States. 

^^ The Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States is tried, the Chief 
Justice shall preside: and no person shall be convicted without 
the concurrence of two-thirds of the members present. 

^* Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and enjoy 



THE CONSTITUTION OF THE UNITED STATES. 3 

any office of honor, trust, or profit under the United States; but 
the party convicted shall, nevertheless, be liable and subject to 
indictment, trial, judgment, and punishment according to law. 

SECTION IV. 

^^ The times, places, and manner of holding elections for Sen- 
ators and Representatives shall be prescribed in each State by 
the legislature thereof; but the Congress may at any time by law 
make or alter such regulations, except as to the places of choosing 
Senators. 

^•^ The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall by law appoint a different day. 

SECTION V. 

^^ Each house shall be the judge of the elections, returns, and 
qualifications of its own members, and a majority of each shall 
constitute a quorum to do business; but a smaller number may 
adjourn from day to day, and may be authorized to compel the 
attendance of absent members, in such manner, and under such 
penalties, as each house may provide. 

^® Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and with the concurrence of 
two-thirds, expel a member. 

^^ Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy, and the yeas and nays of the mem- 
bers of either house on any question shall, at the desire of one- 
fifth of those present, be entered on the journal. 

-•^ Neither house, during the session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two houses shall be 
sitting. 

SECTION VI. 

-^ The Senators and Representatives shall receive a compensa- 
tion for their services, to be ascertained by law and paid out of 
the Treasury of the United States. They shall, in all cases except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective houses, 
and in going to and returning from the same; and for any speech 
or debate in either house they shall not be questioned in any other 
place. 

^^ No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 
of the United States, which shall have been created, or the emolu- 
ments whereof shall have been increased during such time; and 



4 THE CONSTITUTION OF THE UNITED STATES. 

no person holding any office under the United States shall be a 
member of either house during his continuance in office. 

SECTION VII. 

-^ All bills for raising revenue shall originate in the House of 
Eepresentatives; but the Senate may propose or concur with 
amendments as on other bills. 

-■* Every bill which shall have passed the House of Representa- 
tives and the Senate shall, before it becomes a law, be presented 
to the President of the United States; if he approve he shall sign 
it, but if not he shall return it, with his objections, to that house 
in which it shall have originated, who shall enter the objections 
at large on their journal and proceed to reconsider it. If after 
such reconsideration two-thirds of that house shall agree to pass 
the bill, it shall be sent, together with the objections, to the other 
house, by which it shall likewise be reconsidered, and if ajjproved 
by two-thirds of that house it shall become a law. But in all such 
cases the votes of both houses shall be determined by yeas and 
nays, and the names of the persons voting for and against the 
bill shall be entered on the joiTrnal of each house respectively. If 
any bill shall not be returned by the President within ten days 
(Sundays excepted) after it shall have been presented to him, the 
same shall be a law, in like manner as if he had signed it, unless 
the Congress by their adjournment prevent its return, in which 
case it shall not be a law. 

^^ Every order, resolution, or vote to which the concurrence of 
the Senate and House of Eepresentatives may be necessary (except 
on a question of adjournment) shall be presented to the President 
of the United States; and before the same shall take effect, shall 
be approved by him, or being disapproved by him, shall be repassed 
by two-thirds of the Senate and House of Eepresentatives, accord- 
ing to the rules and limitations prescribed in the case of a bill. 

SECTION VIII. 

^^ The Congress shall have power to lay and collect taxes, duties, 
imposts, and excises, to pay the debts and provide for the common 
defense and general welfare of the United States; but all duties, 
imposts, and excises shall be unifonn throughout the United 
States; 

-' To borrow money on the credit of the United States; 

28 r^Q regulate commerce with foreign nations and among the 
several States, and with the Indian tribes; 

-^ To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United States; 

^° To coin money, regulate the value thereof, and of foreign 
coin, and fix the sitandard of weights and measures; 

^^ To provide for the punishment of counterfeiting the securi- 
ties and current coin of the United States; 



THE CONSTITUTION OF THE UNITED STATES, 5 

32 To establish post-offices and post-roads; 

33 To promote the progress of science and useful arts by secur- 
ing for limited times to authors and inventors the exclusive right 
to their respective writings and discoveries; 

3* To constitute tribunals inferior to the Supreme Court; 

35 To define and punish piracies and felonies committed on the 
high seas and offenses against the law of nations; 

3*^ To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water; 

3'^ To raise and support armies, but no appropriation of money 
to that use shall be for a longer time than two years; 

38 To provide and maintain a navy; 

3'' To make rules for the government and regulation of the land 
and naval forces; 

*" To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions; 

*^ To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the States respect- 
ively the appointment of the officers, and the authority of train- 
ing the militia according to the discipline prescribed by Con- 
gress; 

*- To exercise exclusive legislation in all cases whatsoever over 
such district (not exceeding ten miles square) as may, by cession 
of particular States and the acceptance of Congress, become the 
seat of the Government of the United States, and to exercise like 
authority over all places purchased by the consent of the legis- 
lature of the State in which the same shall be, for the erection 
of forts, magazines, arsenals, dockyards, and other needful build- 
ings; and 

*3 To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the United 
States, or in any department or officer thereof. 

SECTION IX. 

** The migration or importation of such persons as any of the 
States now existing shall think proper to admit shall not be pro- 
hibited by the Congress prior to the year one thousand eight 
liundred and eight, 1)ut a tax or duty may be imposed on such 
importation, not exceeding ten dollars for each person. 

*5 The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

■'*' ISTo bill of attainder or ex post facto law shall be passed. 

" No capitation or other direct tax shall be laid, unless in 
proportion to the census or enumeration hereinbefore directed to 
be taken. 



6 THE CONSTITUTION OF THE UNITED STATES. 

*^ ISTo tax or duty shall be laid on articles exported from any 
State. 

'^^ No preference shall be given by any regulation of commerce 
or revenue to the ports of one State over those of another; nor 
shall vessels bound to or from one State be obliged to enter, clear, 
or pay duties in another. 

^° No money shall be drawn from the Treasury but in conse- 
quence of appropriations made by law; and a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time. 

^^ No title of nobility shall be granted by the United States; 
and no person holding any office of profit or trust under them 
shall, without the consent of the Congress, accept of any present, 
emolument, office, or title, of any kind whatever, from any king, 
prince, or foreign Stafe. 

SECTION X. 

^^ No State shall enter into any treaty, alliance, or confedera- 
tion; gTant letters of marque and reprisal; coin money; emit 
bills of credit; make anything but gold and silver coin a tender 
in payment of debts; pass any bill of attainder, ex post facto law, 
or law impairing the obligation of contracts, or grant any title 
of nobility. 

^^ No State shall, without the consent of Congress, lay any 
imposts or duties on imports or exports, except what may be abso- 
lutely necessary for executing its inspection laws; and the net 
produce of all duties and imposts, laid by any State on imports or 
exports, shall be for the use of the Treasury of the United States; 
and all such laws shall be subject to the revision and control of the 
Congress. 

^■* No State, shall, without the consent of Congress, lay any 
duty of tonnage, keep troops or ships of war in time of peace, 
enter into any agreement or compact with another State or with 
a foreign power, or engage in war, unless actually invaded or in 
such imminent danger as will not admit of delay. 

AETICLE II. 

SECTION I. 

^^ The executive power shall be vested in a President of the 
United States of America. He shall hold his office during the 
term ef four years, and together with the Vice-President, chosen 
for the same term, be elected as follows: 

^^ Each State shall appoint, in such manner as the legislature 
thereof may direct, a number of electors, equal to the whole 
number of Senators and Eepresentatives to which the State may 
be entitled in the Congress; but no Senator or Eepresentative, or 



THE CONSTITUTION OF THE UNITED STATES. 7 

person holding an office of trust or profit under the United States, 
shall be appointed an elector. 

^' [The electors shall meet in their respective States and vote 
by ballot for two persons, of whom one at least shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each; which list they shall sign and certify, and trans- 
mit sealed to the seat of government of the United States, directed 
to the President of the Senate. The President of the Senate shall, 
in the presence of the Senate and House of Eepresentatives, open 
all the certificates, and the votes shall then be counted. The 
person having the greatest number of votes shall be the President, 
if such number be a majority of the whole number of electors ap- 
pointed; and if there be more than one who have such majority, 
and have an equal number of votes, then the House of Eepre- 
sentatives shall immediately choose by ballot one of them for 
President; and if no person have a majority, then from the five 
highest on the list the said House shall in like manner choose the 
President. But in choosing the President the votes shall be taken 
by States, the representation from each State having one vote; 
a quorum for this purpose shall consist of a member or members 
from two-thirds of the States, and a majority of all the States 
shall be necessary to a choice. In every case, after the choice of 
the President, the person having the greatest number of votes of 
the electors shall be the Vice-President. But if there should remain 
two or more who have equal votes, the Senate shall choose from 
them by ballot the Vice-President.]^ 

^^ The Congress may determine the time of choosing the elect- 
ors and the day on which they shall give their votes, which day 
shall be the same throughout the United States. 

^^ No person except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, 
shall be eligible to the office of President; neither shall any person 
be eligible to that office who shall not have attained to the age of 
thirty-five years, and been fourteen years a resident within the 
United States. 

*"^ In case of the removal of the President from office, or of 
his death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice-Presi- 
dent, and the Congress may by law provide for the case of re- 
moval, death, resignation, or inability, both of the President and 
Vice-President, declaring w^hat officer shall then act as President, 
and such officer shall act accordingly until the disability be re- 
moved or a President shall be elected. 

^^ The President shall, at stated times, receive for his services 
a compensation, wdiich shall neither be increased nor diminished 

1 This clause of the Constitution has been superseded by the Twelfth 
Amendment. 



8 THE CONSTITUTION OF THE UNITED STATES. 

during the period for wliicli he may have been elected, and he 
shall not receive within that period any other emolument from 
the United States or any of them. 

^'^ Before he enter on the execution of his office he shall take 
the following- oath or affirmation: 

''I do solemnly swear (or affirm) that I will faithfully execute 
the office of President of the United States, and will to the best 
of my ability preserve, protect, and defend the Constitution of 
the United States." 

SECTION 11. 

•^^ The President shall be Commander-in-chief of the Army and 
Navy of the United States, and of the militia of the several States 
when called into the actual service of the United States; he may 
require the opinion, in writing, of the principal officer in each of 
the executive departments, upon any subject relating to the duties 
of their respective offices, and he shall have power to grant re- 
prieves and pardons for olfenses against the United States, except 
in cases of imj^eachment. 

''^He shall have power, by and with the advice and consent 
of the Senate, to make treaties, provided two-thirds of the Senators 
present concur; and he shall nominate, and, by and with the 
advice and consent of the Senate, shall appoint ambassadors, other 
public ministers and consuls, judges of the Supreme Court, and all 
other officers of the United States, whose appointments are not 
herein otherwise provided for, and which shall be established by 
law; but the Congress may by law vest the appointment of such 
inferior officers, as they think proper, in the President alone, in the 
courts of law, or in the heads of departments. 

*^° The President shall have power to fill all vacancies that may 
happen during the recess of the Senate, by granting commissions- 
which shall expire at the end of their next session. 

SECTION III. 

^^ He shall from time to time give to the Congress information 
of the state of the Union, and recommend to their consideration 
such measures as he shall judge necessary and expedient; he may, 
on extraordinary occasions, convene both houses, or either of 
them, and in case of disagreement between them with respect to 
the time of adjournment, he may adjourn them to such time as 
he shall think proper; he shall receive ambassadors and other 
public ministers; he shall take care that the laws be faithfully 
executed, and shall commission all the officers of the United 
States. 

SECTION IV. 

" The President, A^ice-President, and all civil officers of the 
Tnited States shall be removed from office on impeachment for 



THE CONSTITUTION OF THE UNITED STATES. 9 

and conviction of treason, bribery, or other high crimes and mis- 
demeanors. 

AETICLE III. 

SECTION I. 

^s The judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the Congress 
may from time to time ordain and establish. The judges, both 
of the supreme and inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, receive for their services 
a compensation which shall not be diminished during their con- 
tinuance in office. 

SECTION II. 

«^ The judicial power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority; 
to all cases affecting ambassadors, other public ministers, and con- 
suls; to all cases of admiralty and maritime jurisdiction; to con- 
troversies to which the United States shall be a party; to contro- 
versies between two or more States; between a State and citizens 
of another State; between citizens of different States; between 
citizens of the same State claiming lands under grants of different 
States, and between a State, or the citizens thereof, and foreign 
States, citizens, or subjects. 

■^^ In all cases affecting ambassadors, other public ministers 
and consuls, and those in which a State shall be a party, the Su- 
preme Court shall have original jurisdiction. In all the other cases 
before mentioned the Supreme Court shall have appellate juris- 
diction, both as to law and fact, with such exceptions and under 
such regulations as the Congress shall make. 

■'^ The trial of all crimes, except in cases of impeachment, shall 
be by jury; and such trial shall be held in the State where the 
said crimes shall have been committed; but when not committed 
within any State, the trial shall be at such place or places as the 
Congress may by law have directed. 

SECTION III. 

''^ Treason against the United States shall consist only in levy- 
ing war again&t them, or in adhering to their enemies, giving them 
aid and comfort. No person shall be convicted of treason unless 
on the testimony of two witnesses to the same overt act, or on 
confession in open court. 

■^3 The Congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of 
blood or forfeiture except during the life of the person attainted. 



10 THE CONSTITUTION OF THE UNITED STATES. 

AETICLE IV. 

SECTION I. 

■^^ Full faith, and credit shall be given in each State to the public 
acts, records, and judicial proceedings of every other State. And 
the Congress may by general laws prescribe the manner in which 
such acts, records, and proceedings shall be proved, and the effect 
thereof. 

SECTION II. 

'^ The citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States. 

'^ A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another State, 
shall, on demand of the executive authority of the State from 
which he fled, be delivered up, to be removed to the State having 
jurisdiction of the crime. 

■^■^ No person held to service or labor in one State, under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the party to whom 
such service or labor may be due. 

SECTION III. 

"■^ New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the jurisdiction 
of any other State; nor any State be formed by the junction of 
two or more States or parts of States, without the consent of the 
legislatures of the States concerned as well as of the Congress. 

''-* The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this 
Constitution shall be so construed as to prejudice any claims of 
the United States or of any particular State. 

SECTION IV. 

^° The United States shall guarantee to every State m this 
Union a republican form of government, and shall protect each of 
them against invasion, and on application of the legislature, or 
of the executive (when the legislature cannot be convened), against 
domestic violence. 

AETICLE Y. 

^^ The Congress, whenever two-thirds of both houses shall deem 
it necessary, shall propose amendments to this Constitution, or. 



THE CONSTITUTION OF THE UNITED STATES. 11 

on the application of the legislatures of two-thirds of the several 
States, shall call a convention for proposing amendments, which 
in either case shall be valid to all intents and purposes as part of 
this Constitution, when ratified by the legislatures of three-fourths 
of the several States, or by conventions in three-fourths thereof, 
as the one or the other mode of ratification may be proposed by 
the Congress, provided that no amendments which may be made 
prior to the year one thousand eight hundred and eight shall in 
any manner aif ect the first and fourth clavises in the ninth section 
of the first article; and that no State, withorit its consent, shall 
be deprived of its equal suffrage in the Senate. 

ARTICLE VI. 

^- All debts contracted and engagements entered into, before 
the adoption of this Constitution, shall be as valid against the 
United States under this Constitution as under the confederation. 

^^ This Constitution, and the laws of the United States wliich 
shall be made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, shall 
be the supreme law of the land; and the judges in every State 
shall be bound thereby, anything in the Constitution or laws of 
any State to the contrary notwithstanding. 

*** The Senators and Eepresentatives before mentioned, and the 
members of the several State legislatures, and all executive and 
judicial officers both of the United States and of the several 
States, shall be bound by oath or affirmation to support this Con- 
stitution; but no religious test shall ever 1)e required as a qualifi- 
cation to any office or public trust under the United States. 

AETICLE VII. 

^^ The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying the same. 

®^ Done in convention by the unanimous consent of the States 
present, the seventeenth day of September, in the year of 
our Lord one thousand seven hundred and eighty-seven, and 
of the independence of the United States of America the 
twelfth. In witness whereof, we have hereunto subscribed 
our names. 

George Washington, President, and Deputy from Virginia. 

New Hampshire — John Langdon, Nicholas Oilman. 

Massachusetts — Xathaniel Gorham. Eufus King. 

Connecticut — William Samuel Johnson, Roger Sherman. 

New York — Alexander Hamilton. 

New Jersey — William Livingston, David Brearly, William Pat- 
terson, Jonathan Dayton. 



12 THE CONSTITUTION OF THE UNITED STATES. 

Pennsylvania — Benjamin Franklin, Thomas Mifflin, Eobert Mor- 
ris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James 
Wilson, Gonverneiir Morris. 

Delaware — George Eead, Gunning Bedford, Jr., John Dickinson, 
Eichard Bassett, Jacob Broom. 

Maryland — James McHenry, Daniel of St. Thomas Jenifer, Daniel 
Carroll. 

Virginia — John Blair, James Madison, Jr. 

Xorth Carolina — William Blount, Eichard Dobbs Spaight, Hugh 
Williamson. 

South Carolina — John Eutledge, Charles Cotesworth Pinckney, 
Charles Pinckney, Pierce Butler. 

Georgia — William Few, Abraham Baldwin. 

Attest: William Jackson, Secretary. 



AMENDMENTS. 



AETICLE I. 

®^ Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging 
the freedom of speech or of the press; or the right of the people 
peaceably to assemble, and to petition the government for a redress 
of grievances. 

AETICLE II. 

®^ A well-regulated militia being necessar}^ to the security of 
a free State, the right of the people to keep and bear arms shall 
not be infringed. 

AETICLE III. 

^^ Xo soldier shall, in time of peace, be quartered in any house 
without the consent of the owner, nor in time of war, but in a 
manner to be prescribed by law. 

AETICLE lA^. 

^° The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue but upon prob- 
able cause, supported by oath or affirmation, and particularly de- 



THE CONSTITUTION OF THE UNITED STATES. 13 

scribing the place to be searched, and the person or things to be 
seized. 

AETICLE V. 

^^ No person shall be held to answer for a capital or other- 
wise infamous crime, unless on a presentment or indictment of 
a grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in actual service in time of war or public 
danger; nor shall any person be subject for the same offense to 
be twice put in jeopardy of life or limb; nor shall be compelled 
in any criminal case to be a witness against himself, nor be de- 
prived of life, liberty, or property, without due process of law; 
nor shall private property be taken for public use without just 
compensation. 

AETICLE VI. 

^^ In all criminal prosecutions the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed, which 
district shall have been previously asceirtained by law, and to be 
informed of the nature and cause of the accusation; to be con- 
fronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor, and to have the assist- 
ance of counsel for his defense. 

AETICLE VII. 

^^ In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
court of the United States, than according to the rules of the 
common law. 

AETICLE YIII. 

^* Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

AETICLE IX. 

^^ The enumeration in the Constitution of certaij;! rights shall 
not be construed to deny or disparage others retained by the 
peojDle. 

AETICLE X. 

^^ The powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively or to the people. 



14 THE CONSTITUTION OF THE UNITED STATES. 



AETICLE XI. 

°^ Tlie judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity, commenced or prose- 
cuted against one of the United States by citizens of another 
State, or by citizens or subjects of any foreign State. 

AETICLE XII. 

^^ The electors shall meet in their respective States and vote 
by ballot for President and Vice-President, one of whom, at 
least, shall not be an inhabitant of the same State with them- 
selves; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice- 
President, and they shall make distinct lists of all persons voted 
for as President and of all persons voted for as Vice-President, 
and of the number of votes for each; which lists they shall sign 
and certify, and transmit sealed to the seat of the government 
of the United States, directed to the President of the Senate. 
The President of the Senate shall, in the presence of the Senate 
and House of Eepresentatives, open all the certificates and the 
votes shall then be counted. The person having the greatest 
number of votes for President shall be the President, if such 
niimber be a majority of the whole number of electors appointed; 
and if no person have such majority, then from the persons hav- 
ing the highest numbers not exceeding three on the list of those 
voted for as President, the House of Eepresentatives shall choose 
immediately, by ballot, the President. But in choosing the Presi- 
dent the votes shall be taken by States, the representation from 
each State having one vote; a quorum for this purpose shall con- 
sist of a member or members from two-thirds of the States, and 
a majority of all the States shall be necessary to a choice. And 
if the House of Eepresentatives shall not choose a President when- 
ever the right of choice shall devolve^ upon them, before the fourth 
day of March next following, then' the Vice-President shall act 
as President, as in the case of the death or other constitutional 
disability of the President. 

^^ The person having the greatest number of votes as Vice-Presi- 
dent shall be the Vice-President, if such number be a majority 
of the whole number of electors appointed; and if no person have 
a majority, then from the two highest numbers on the list the 
Senate shall choose the Vice-President; a quorum for the pur- 
pose shall consist of two-thirds of the whole number of Senators, 
and a majority of the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the office of President 
shall be eligible to that of Vice-President of the United States. 



THE CONSTITUTION OF THE UNITED STATES. 15 



AETICLE XIII. 

^"•^ Section 1. Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall have been duly 
convicted, shall exist within the United States or any place sub- 
ject to their jurisdiction. 

"'^ Section 2. Congress shall have power to enforce this article 
by appropriate legislation. 

AETICLE XIV. 

^^^ Section 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No State 
shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, without duo 
process of law; nor deny to any person within its jurisdiction the 
equal protection of the laws. 

^"^ Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting the 
whole number of persons in each State, excluding Indians not 
taxed. But when the right to vote at any election for the choice 
of electors for President and Vice-President of the United States, 
Eepresentatives in Congress, the executive and judicial officers 
of a State, or the members of the legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way 
abridged, except for participation in rebellion, or other crime, the 
basis of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such State. 

^"■^ Section 3. No person shall be a Senator or Eepresentative 
in Congress, or elector of President and Vice-President, or hold 
any office, civil or military, under the United States or under 
any State, who, having previously taken an oath as a member of 
Congress, or as an officer of the United States, or as a member 
of any State legislature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof. But Congress may, 
by a vote of two-thirds of each house, remove such disability. 

"^ Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for payment 
of pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United 
States nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 



16 THE CONSTITUTION OP THE UNITED STATES. 

States, or any claim for the loss or emancipation of any slave; but 
all such debts, obligations, and claims shall be held illegal and 
void. 

^^® Section 5. The Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article. 

AETICLE XV. 

^^■^ Section 1. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States or by 
any State on account of race, color, or previous condition of servi- 
tude. 

^°^ Section 2. The Congress shall have power to enforce this 
article by appropriate legislation. 



[. THE VALIDITY OF LEGISLATION. 



MAEBUEY V. MADISON. 

1 Cranch., 137. Decided 1803. 

At the last term, namely, December term, 1801, William Mar- 
bury, Dennis Eamsey, Eobert Townsend Hooe, and William Har- 
per, by their connsel, Charles Lee, Esq., late Attorney-general of 
the United States, severally moved the court for a rule to James 
Madison, Secretary of State of the United States, to show cause 
why a mandamus should not issue commanding him to cause to 
he delivered to them respectively their several commissions as 
justices of the peace in the District of Columbia. This motion 
was supported by affidavits of the following facts: that notice 
of this motion had been given to Mr. Madison; that Mr. Adams, 
the late President of the United States, nominated the applicant 
to the senate for their advice and consent to be appointed justices 
of the peace of the District of Columbia; that the senate advised 
and consented to the appointments; that commissions in due form 
were signed by the said president appointing them justices, etc., 
and that the seal of the United States was in due form affixed to 
the said commissions by the secretary of state; that the applicants 
have requested Mr. Madison to deliver them their said commis- 
sions, who has not complied with that request; and that their said 
commissions are withheld from them; that the applicants have 
made application to Mr. Madison, as secretary of state of the 
United States, at his office, for information whether the commis- 
sions were signed and sealed as aforesaid; that explicit and satis- 
factory information has not been given in answer to that inquiry, 
either by the secretary of state or any officer in the department 
of state; that application has been made to the secretary of the 
senate for a certificate of the nomination of the applicants, and 
of the advice and consent of the senate, who has declined giving 
such a certificate; whereupon a rule was laid to show cause on the 
fourth day of this term. This rule having been duly served, Mr. 
Lee read the affidavit of Dennis Eamsey, and the printed journals 
2 17 



18 CASES ON CONSTITUTIONAL LAW. 

of the senate of 31st January, 1803, respecting the refusal of the 
senate to suffer their secretary to give the information requested. 
He then called Jacob Wagner and Daniel Brent, who had been 
summoned to attend the court, and who had, as it is understood, 
declined giving a voluntary affidavit. They objected to being 
sworn, alleging that they were clerks in the department of state, 
and not bound to disclose any facts relating to the business or 
transactions in the office. 

The court ordered the witnesses to be sworn, and their answers 
taken in writing, but informed them that when the questions were 
asked they might state their objections to answering each par- 
ticular question, if they had any. 

Mr. Lincoln, attorney-general, having been summoned, and now 
called, objected to answering. He requested that the questions 
might be put in writing, and that he might afterwards have time 
to determine whether he would answer. On the one hand he 
respected the jurisdiction of this court, and on the other he felt 
himself bound to maintain the rights of the executive. He was 
acting as secretary of state at the time when the transaction hap- 
pened. He was of opinion, and his opinion was supported by that 
of others whom he highly respected, that he was not bound, and 
ought not to answer, as to any facts which came officially to his 
knowledge while acting as secretary of state. 

The questions being written, were then read and handed to him. 
He repeated the ideas he had before suggested, and said his objec- 
tions were of two kinds. 

1st. He did not think himself bound to disclose his official 
transactions while acting as Secretary of State; and, 

2d. He ought not to be compelled to answer anything which 
might tend to criminate himself. 

Mr. Lincoln thought it was going a great way to say that every 
Secretary of State should at all times be liable to be called upon 
to appear as a witness in a court of justice, and testify to facts 
which came to his knowledge officially. He felt himself delicately 
situated between his duty to this court and the duty he conceived 
he owed to an executive department; and hoped the court would 
give him time to consider the subject. 

The court said that if Mr. Lincoln wished time to consider what 
answers he should make, they would give him time; but they had 
no doubt he ought to answer. There was nothing confidential 
required to be disclosed. If there had been he was not obliged 
to answer it; and if he thought that anything was communicated 
to him in confidence he was not bound to disclose it; nor was 



MARBURY V. MADISON. 19 

he obliged to state anything which would criminate himself; but 
that the fact whether such commissions had been in the office or 
not, could not be a confidential fact; it is a fact which all the 
world have a right to know. If he thought any of the questions 
improper, he might state his objections. 

Mr. Lincoln then prayed time till the next day to consider of 
his answers under this opinion of the court. 

The court granted it, and postponed further consideration of the 
cause till the next day. 

At the opening of the court on the next morning, Mr. Lincoln 
said he had no objection to answering the questions proposed, 
excepting the last, which he did not think himself obliged to 
answer fully. The question was, what had been done with the 
commissions? He had no hesitation in saying that he did not 
know that they ever came to the possession of Mr. Madison, nor 
did he know that they were in the office when Mr. Madison took 
possession of it. He prayed the opinion of the court whether he 
was obliged to disclose what had been done with the commissions. 

The court were of opinion that he was not bound to say what 
had become of them; if they never came to the possession of Mr. 
Madison it was immaterial to the present cause what had been 
done with them by others. 

Afterwards, on the 24th February, the following opinion of the 
court was delivered by the Chief Justice. At the last term on 
the affidavits then read and filed with the clerk, a rule was granted 
in this case, requiring the Secretary of State to show cause why a 
mandamus should not issue, directing him to deliver to William 
Marbury his commission as a justice of the peace for the county 
of Washington, in the District of Columbia. 

No cause has been shown, and the present motion is for a 
mandamus. The peculiar delicacy in this case, the novelty of 
some of its circumstances, and the real difficulty attending the 
points which occur in it, require a complete exposition of the prin- 
ciples on which the opinion to be given by the court is founded. 

These principles have been, on the side of the applicant, very 
ably argued at the bar. In rendering the opinion of the court, 
there will be some departure in form, though not in substance, 
from the points stated in that argument. 

In the order in which the court has viewed this subject, the 
following questions have been considered and decided: 

1st. Has the applicant a right to the commission he demands? 

2dly. If he has a right, and that right has been violated, do 
the laws of his country afford him a remedy? 



20 CASES ON CONSTITUTIONAL LAW. 

3dly. If tliey do afford him a remedy, is it a mandamus issuing 
from this court? 

The first object of inquiry is, 

1st. Has the applicant a right to the commission he demands? 

[The court holds that, having been duly appointed, he has 
a right to his commission.] 

This brings us to the second inquiry, which is, 
2dly. If he has a right, and that right has been violated, do 
the laws of his country afford him a remedy? ... 

[The court finds that they do.] 

It remains to be inquired whether, 

3dly. He is entitled to the remedy for which he applies. This 
depends on, 

1st. The nature of the writ applied for; and, 

2dly. The power of this court. 

1st. The nature of the writ. . . . 

This, then, is a plain case for a mandamus, either to deliver 
the commission, or a copy of it from the record; and it only 
remains to be inquired, 

Whether it can issue from this court. . . . The authority, 
therefore, given to the supreme court, by the act establishing the 
judicial courts of the United States, to issue writs of mandamus 
to public officers, appears not to be warranted by the constitu- 
tion; and it becomes necessary to inquire whether a jurisdiction 
so conferred can be exercised. 

The question whether an act repugnant to the constitution can 
become the law of the land, is a question deeply interesting to 
the United States; but, happily, not of an intricacy proportioned 
to its interest. It seems only necessary to recognize certain prin- 
ciples, supposed to have been long and well established, to decide it. 

That the people have an original right to establish, for their 
future government, such principles as, in their opinion, shall most 
conduce to their own happiness, is the basis on which the whole 
American fabric has been erected. The exercise of this original 
right is a very great exertion; nor can it nor ought it to be 
frequently repeated. The principles, therefore, so established, are 
deemed fundamental. And as the authority from which they 
proceed is supreme, and can seldom act, tliey are designed to be 
permanent. 

This original and supreme will organizes the government, and 
assigns to different departments their respective powers. It may 



MARBURY V. MADISON. 21 

either stop here, or establish certain limits not to be transcended 
by those departments. 

The government of the United States is of the latter descrip- 
tion. The powers of the legislature are defined and limited; and 
that those limits may not be mistaken, or forgotten, the con- 
stitution is written. To what purpose are powers limited, and to 
what purpose is that limitation committed to writing, if these limits 
may, at any time, be passed by those intended to be restrained? 
The distinction between a government with limited and unlimited 
powers is abolished, if those limits do not confine the persons 
on whom they are imposed, and if acts prohibited and acts allowed 
are of equal obligation. It is a proposition too plain to be con- 
tested, that the constitution controls any legislative act repugnant 
to it; or, that the legislature may alter the constitution by an 
ordinary act. 

Between these alternatives there is no middle ground. The 
constitution is either a superior paramount law, unchangeable by 
ordinary means, or it is on a level with ordinary legislative acts, 
and, like other acts, is alterable when the legislature shall please 
to alter it. 

If the former part of the alternative be true, then a legislative 
act contrary to the constitution is not law; if the latter part be 
true, then written constitutions are absurd attempts, on the part 
of the people, to limit a power in its own nature illimitable. 

Certainly all those who have framed written constitutions con- 
template them as forming the fundamental and paramount law of 
the nation, and, consequently, the theory of every such govern- 
ment must be, that an act of the legislature, repugnant to the 
constitution, is void. 

This theory is essentially attached to a written constitution, and 
is consequently to be considered, by this court, as one of the 
fundamental principles of our society. It is not, therefore, to be 
lost sight of in the further consideration of this subject. 

If an act of the legislature, repugnant to the constitution, is 
void, does it, notwithstanding its invalidity, bind the courts, and 
oblige them to give it effect? Or, in other words, though it be 
not law, does it constitute a rule as operative as if it was a law? 
This would be to overthrow in fact what was established in theory; 
and would seem, at first view, an absurdity too gross to be insisted 
on. It shall, however, receive a more attentive consideration. 

It is emphatically the province and duty of the judicial depart- 
ment to say what the law is. Those who apply the rule to particu- 
lar cases, must of necessity expound and interpret that rule. If 



22 CASES ON CONSTITUTIONAL LAW. 

two laws conflict with each, other, the courts must decide on the 
operation of each. 

So if a law be in opposition to the constitution; if both the law 
and the constitution apply to a particular case, so that the court 
must either decide that case conformabty to the law, disregarding 
the constitution, or conformably to the constitution, disregarding 
the law, the court must determine which of these conflicting rules 
governs the case. This is of the very essence of Judicial duty. 

If, then, the courts are to regard the constitution, and the con- 
stitution is superior to any ordinary act of the legislature, the 
constitution, and nut such ordinary act, must govern the case to 
which they both apply. 

Those, then, who controvert the principle that the constitution 
is to be considered, in court, as a paramount law, are reduced to 
the necessity of maintaining that courts must close their eyes on 
the constitution, and see only the law. 

This doctrine would subvert the very foundation of all written 
constitutions. It would declare that an act which, according to 
the principles and theory of our government, is entirely void, is 
yet, in practice, completely obligatory. It would declare that if 
the legislature shall do what is expressly forbidden, such act, not- 
withstanding the express prohibition, is in reality efiiectual. It 
would be giving to the legislature a practical and real omnipotence, 
with the same breath which professes to restrict their powers within 
narrow limits. It is prescribing limits, and declaritig that those 
limits may be passed at pleasure. 

That it thus reduces to nothing what we have deemed the great- 
est improvement on political institutions, a written constitution, 
would of itself be sufficient, in America, where written constitu- 
tions have been viewed with so much reverence, for rejecting the 
construction. But the peculiar expressions of the constitution of 
the United States furnish additional arguments in favor of its re- 
jection. 

The judicial power of the United States is extended to all cases 
arising under the constitution. 

Could it be the intention of those who gave this power, to say 
that in using it the constitution should not be looked into? That 
a case arising under the constitution should be decided without 
examining the instrument under which it arises? 

This is too extravagant to be maintained. 

In some cases, then, the constitution must be looked into by the 
judges. And if they can open it at all. what part of it are they 
forbidden to read or to obey? 



MARBURY V. MADISON. 33 

There are many other jiarts of the constitution which serve to 
illustrate this subject. 

It is declared that "no tax or duty shall be laid on articles ex- 
ported from any State." • Suppose a duty on the export of cotton, 
of tobacco, or of flour; and a suit instituted to recover it. Ought 
judgment to be rendered in such a case? ought the judges to close 
their eyes on- the constitution, and only see the law? 

The constitution declares "that no bill of attainder or ex post 
facto law shall be passed." 

If, however, such a bill should be passed, and a person should 
be prosecuted under it, must the court condemn to death those 
victims whom the constitution endeavors to preserve? 

"N"o person," says the constitution, "shall be convicted of treason 
unless on the testimony of two witnesses to the same overt act, or 
on confession in open court." ' 

Here the language of the constitution is addressed especially to 
the courts. It prescribes, directly for them, a rule of evidence not 
to be departed from. If the legislature should change that rule, 
and declare one witness, or a confession out of court, sufficient for 
conviction, must the constitutional principle yield to the legisla- 
tive act? 

From these, and many other selections which might be made, it 
is apparent that the framers of the constitution contemplated that 
instrument as a rule for the government of courts, as well as of the 
legislature. 

Why otherwise does it direct the judges to take an oath to sup- 
port it? This oath certainly applies in an especial manner to their 
conduct in their official character. How immoral to impose it on 
them, if they were to be used as the instruments, and the knowing 
instruments, for violating what they swear to support! 

The oath of office, too, imposed by the legislature, is completely 
demonstrative of the legislative opinion on this subject. It is in 
these words: "1 do solemnly swear that I will administer justice 
without respect to persons, and do equal right to the poor and to 
the rich; and that I will faithfully and impartially discharge all 
the duties incumbent on me as , according to the best of my 

abilities and understanding, agreeably to the constitution and laws 
of the United States." 

Why does a judge swear to discharge his duties agreeably to the 
constitution of the United States, if that constitution forms no 
rule for his government — if it is closed upon him, and cannot be 
inspected by him? 

If such be the real state of things, this is worse than solemn 



34 CASES ON CONSTITUTIONAL LAW. 

mockery. To prescribe, or to take this oath, becomes equally a 
crime. 

It is also not entirely unworthy of observation^ that in declaring 
what shall be the supreme law of the land, the constitution itself 
is first mentioned; and not the laws of the United States generally, 
but those only which shall be made in pursuance of the constitu- 
tion, have that rank. 

Thus, the particular phraseology of the constitution of the 
United States confirms and strengthens the principle, supposed 
to be essential to all written constitutions, that a law repugnant 
to the constitution is void; and that courts, as well as other de- 
partments, are bound by that instrument. 

The rule must de discharged. 

jSTote. — The principle that the courts have authority to pass 
upon the validity of legislation had been asserted in at least five 
States before the adoj^tion of the Constitution, — viz., in Holmes 
V. Walton, in New Jersey, 1780; in Commonwealth v. Caton, in 
Virginia, in 1782; in Eutgers v. Waddington, in I^ew York, in 
1784; in Trevett v. Weeden, in Ehode Island, in 1786; and in 
Bayard v. Singleton, in IS^orth Carolina, in 1787. All these cases 
save the first are printed in Thayer's Cases, I, 55-80. In 1792 the 
Supreme Court of South Carolina, in the ease of Bowman v. Mid- 
dleton (1 Bay., 252), declared that an act passed by the Colonial 
Legislature in 1712, which took away the freehold of one man and 
vested it in another without any compensation or even a trial by 
the jury of the country, was "against common right, as well as 
against Magna Charta," and "therefore ipso facto void." For a 
valuable discussion of these early constitutional cases, see an article 
on "The Eelation of the Judiciary to the Constitution," by W. M. 
Meigs, in American Law Eeview, xix, 175 (1885). See also Coxe, 
The Judicial Power and Unconstitutional Legislation, 219-271. 
A most admirable discussion of the whole question is found in an 
article on "The Origin and Scope of the American Doctrine of 
Constitutional Law," by Prof. James B. Thayer, in Harvard Law 
Eeview, vii, 129 (1893). For an adverse view of the power of the 
courts over unconstitutional legislation, see Eakin v. Eaub, 12 
Sergeant and Eawle (Pennsylvania), 330, also printed in Thayer's 
Cases, I, 133. A list of cases in which the Federal Supreme Court 
has declared statutes or parts of statutes invalid is given in 131 
U. S. Appendix, ccxxxv. The list is incomplete, one of the nipst 
conspicuous omissions being the Dred Scott case. 

"The interpretation of the laws is the proper and peculiar prov- 



MARBURY V. MADISON. 25 

'ince of the courts. A Constitution is, in fact, and must be re- 
garded by the Judges as a fundamental law. It must therefore 
belong to them to ascertain its meaning, as well as the meaning of 
any particular act proceeding from the legislative body. If there 
should happen to be an irreconcilable variance between. the two, 
that which has the superior obligation and validity ought, of 
course, to be preferred: in other words, the Constitution ought to 
be preferred to the statutes, the intention of the people to the in- 
tention of their agents." Hamilton, in The Federalist, No, 78. 

"If they [the government of the United States] were to make 
a law not warranted by any of the powers enumerated, it would be 
considered by the judges as an infringement of the Constitution 
which they are to guard. They would not consider such a law as 
coming under their jurisdiction. They would declare it void." 
John Marshall, in the Virginia Convention of 1788, Elliot's De- 
bates, III, 553. 

"To control the power and conduct of the legislature, by an 
overruling constitution, was an improvement in the science and 
practice of government reserved to the American states." James 
Wilson, in the Pennsylvania Convention of 1787, Elliot's De- 
bates, II, 432. 



Lf^ 



II. TAXATION. 



HYLTON V. THE UNITED STATES. 
3 Dallas, 171. Decided 1796. 

This was a writ of error to the circuit court of the United 
States for the district of Virginia. The question raised, and all 
the facts necessary to be adverted to, appear in the opinions of the 
members of the court. . . . 

The court delivered these opinions seriatim, in the following 
terms.^ 

Chase, J. By the case stated, only one question is submitted 
to the opinion of this court: Whether the law of congress of the 
5th of June, 1794 (1 U. S. Stat, at Large, 373), entitled, "An act 
to lay duties upon carriages for the conveyance of persons," is 
unconstitutional and void? 

The principles laid down to prove the above law void, are these: 
That a tax on carriages is a direct tax, and therefore, by the con- 
stitution, must be laid according to the census directed by the con- 
stitution to be taken, to ascertain the number of representatives 
from each State. And that the tax in question, on carriages, is 
not laid by that rule of apportionment, but by the rule of uni- 
formity, prescribed by the constitution in the case of duties, im- 
jDOsts, and excises; and a tax on carriages is not within either of 
those descriptions. . . . 

The constitution evidently contemplated no taxes as direct taxes, 
but only such as congress could lay in proportion to the census. 
The rule of apportionment is only to be adopted in such cases 
where it can reasonably apply; and the subject taxed must ever 
determine the application of the rule. 

If it is proposed to tax any specific article by the rule of appor- 
tionment, and it would certainl}^ create great inequalit)^ and injus- 
tice, it is unreasonable to say that the constitution intended such 
tax should be laid by that rule. 

1 The Chief Justice, Ellsworth, whole of the argument, he declined 
was sworn into office in the morn- taking any part in the decision of 
ing; but not having heard the this cause. 

26 



HYLTON V. UNITED STATES. 27 

It appears to me that a tax on carriages cannot be laid by the 
rule of apportionment, without very great inequality and injustice. 
For example, suppose two States, equal in census, to pay eighty 
thousand dollars each, by a tax on carriages of eighty dollars on • 
every carriage, and in one State there are one hundred carriages 
and in the other one thousand. The owners of carriages in one 
State would pay ten times the tax of owners in the other. A, in 
one State, would pay for his carriage eight dollars; but B, in the 
other State, would pay for his carriage, eighty dollars. 

It was argued that a tax on carriages was a direct tax, and might 
be laid according to the rule of apportionment, and, as I under- 
stood, in this manner: Congress, after determining on the gross 
sum to be raised, was to apportion it according to the census and 
then lay it in one State on carriages, in another on horses, in a 
third on tobacco, in a fourth on rice, and so on. I admit that this 
mode might be adopted to raise a certain sum in each State, ac- 
cording to the census, but it would not be a tax on carriages, but 
on a number of specific articles; and it seems to me that it would 
be liable to the same objection of abuse and oppression, as a selec- 
tion of any one article in all the States. 

I think an annual tax on carriages for the conveyance of persons, 
may be considered as within the power granted to congress to lay 
duties. The term duty, is the most comprehensive, next to the 
general term tax; and practically in Great Britain, whence we 
take our general ideas of taxes, duties, imposts, excises, customs, 
&c., embraces taxes on stamps, tolls for passage, &c., &c., and is 
not confined to taxes on importation only. 

It seems to me that a tax on expense is an indirect tax; and I 
think an annual tax on a carriage for the conveyance of persons, is 
of that kind; because a carriage is a consumable commodity, and 
such annual tax on it, is on the expense of the owner. 

I am inclined to think, but of this I do not give a judicial opin- 
ion, that the direct taxes contemplated by the constitution, are 
only two, to wit, a capitation or poll tax, simply without regard to 
property, profession, or any other circumstance; and a tax on land. 
I doubt whether a tax, by a general assessment of personal prop- 
erty, within the United States, is included within the term direct 
tax. 

As I do not think the tax on carriages is a direct tax, it is un- 
necessary at this time for me to determine whether this court 
constitutionally possesses the power to declare an act of congress 
void, on the ground of its being made contrary to, and in violation 



28 CASES ON CONSTITUTIONAL LAW. 

of the constitution; but if the court have such power, I am free 
to declare, that I will never exercise it but in a very clear case. 
I am for affirming the judgment of the circuit court. 

Pateeson, J. . . . "What are direct taxes within the mean- 
ing of the constitution? The constitution declares that a capita- 
tion tax is a direct tax; and both in theory and practice, a tax 
on land is deemed to be a direct tax. In this way, the terms direct 
taxes, and capitation and other direct tax, are satisfied. It is not 
necessary to determine, whether a tax on the product of land be a 
direct or indirect tax. Perhaps the immediate product of land, in 
its original and crude state, ought to be considered as the land 
itself; it makes part of it, or else the provision made against tax- 
ing exports would be easily eluded. Land, independently of its 
produce, is of no value. Wlien the produce is converted into a 
manufacture it assumes a new shape; its nature is altered, its orig- 
inal state is changed, it becomes quite another subject, and it will 
be differently considered. Whether direct taxes, in the sense of 
the constitution, comprehend any other tax than a capitation tax, 
and tax on land, is a questionable point. If congress, for instance, 
should tax, in the aggregate or mass, things that generally pervade 
all the States in the Union, then perhaps the rule of apportionment 
would be the most proper, especially if an assessment w^as to inter- 
vene. This appears, by the practice of some of the States, to have 
been considered as a direct tax. Wliether it be so under the con- 
stitution of the United States is a matter of some difficulty; but 
as it is not before the court, it would be improper to give any 
decisive opinion upon it. I never entertained a doubt that the 
principal, I will not say the only objects, that the framers of the 
constitution contemplated as falling within the rule of apportion- 
ment, were a capitation tax and a tax on land. Local considera- 
tions, and the particular circumstances and relative situation of 
the States, naturally lead to this view of the subject. The pro- 
vision was made in favor of the southern States. They possessed 
a large number of slaves; they had extensive tracts of territory, 
thinly settled and not very productive. A majority of the States 
had but few slaves, and several of them a limited territory, well 
settled, and in a high state of cultivation. The Southern States, 
if no provision had been introduced in the constitution, would 
have been wholly at the mercy of the other States. Congress in 
such case might tax slaves, at discretion or arbitrarily, and land in 
every part of the L^nion after the same rate or measure; so much 
a head in the first instance, and so much an acre in the second. 



HYLTON V. UNITED STATES. 29 

To guard them against imposition, in these particulars, was the 
reason of introducing the clause in the constitution which directs 
that representatives and direct taxes shall be apportioned among 
the States according to their respective numbers. , . . 

All taxes on expense or consumption are indirect taxes. A tax 
on carriages is of this kind, and of course is not a direct tax. In- 
direct taxes are circuitous modes of reaching the revenue of indi- 
viduals, who generally live according to their income. In many 
cases of this nature the individual may be said to tax himself. I 
shall close this discourse with reading a passage or two from 
Smith's Wealth of Nations. 

"The impossibility of taxing people in proportion to their rev- 
enue by any capitation, seems to have given occasion to the inven- 
tion of taxes upon consumable commodities; the State not know- 
ing how to tax directly and proportionably the revenue of its sub- 
jects, endeavors to tax it indirectly by taxing their expense, which 
it is supposed in most cases will be nearly in proportion to their 
revenue. Their expense is taxed by taxing the consumable com- 
modities upon which it is laid out." Vol. iii, 331. 

"Consumable commodities, whether necessaries or luxuries, may 
be taxed in two different ways; the consumer may either pay an 
annual sum on account of his using or consuming goods of a cer- 
tain kind, or the goods may be taxed while they remain in the 
hands of the dealer, and before they are delivered to the consumer. 
The consumable goods, which last a considerable time before they 
are consumed altogether, are most properly taxed in the one way; 
those of which the consumption is immediate, or more speedy, in 
the other; the coach tax and plate tax are examples of the former 
method of imposing; the greater part of the other duties of excise 
and customs, of the latter." Vol. iii, p. 341. 

I am, therefore, of opinion that the judgment rendered in the 
circuit court of Virginia ought to be affirmed. 

Ieedell, J. I agree in opinion with my brothers, who have al- 
ready expressed theirs, that the tax in question is agreeable to the 
constitution; and the reasons which have satisfied me can be de- 
livered in a very few words, since I think the constitution itself 
affords a clear guide to decide the controversy. 

The congress possess the power of taxing all taxable objects, 
without limitation, with the particular exception of a duty on 
exports. 

There are two restrictions only on the exercise of this authority — 



30 CASES ON CONSTITUTIONAL LAW. 

1. All direct taxes must be apportioned. 

2. All duties^ imposts and excises must be uniform. 

If the carriage tax be a direct tax, within the meaning of the 
constitution, it must be apportioned. If it be a duty, impost, or 
excise, within the meaning of the constitution, it must be uniform. 

If it can be considered as a tax, neither direct within the mean- 
ing of the constitution, nor comprehended within the term duty, 
impost, or excise; there is no provision in the constitution, one 
way or another, and then it must be left to such an operation of the 
power, as if the authority to lay taxes had been given generally in 
all instances, without saying whether they should be apportioned 
or uniform; and in that case, I should presume, the tax ought to 
be uniform; because the present constitution was particularly in- 
tended to affect individuals, and not States, except in particular 
cases specified; and this is the leading distinction between the 
articles of confederation and the present constitution. 

As all direct taxes must be apportioned, it is evident that the 
constitution contemplated none as direct but such as could be 
apportioned. 

If this cannot be apportioned, it is, therefore, not a direct tax 
in the sense of the constitution. 

That this tax cannot be apportioned is evident. Suppose ten 
dollars contemplated as a tax on each chariot, or post chaise, in the 
United States, and the .number of both in all the United States be 
computed at one hundred and five, the number of representatives 
in congress, — this would produce in the whole one thousand and 
fifty dollars; the share of Virginia, being 19-105 parts, would be 
one hundred and ninety dollars; the share of Connecticut, being 
7-105 parts, would be seventy dollars; then suppose Virginia had 
fifty carriages, Connecticut two, the share of Virginia being one 
hundred and ninety dollars, this must of course be collected from 
the owners of carriages, and there would therefore be collected 
from each carriage three dollars and eighty cents; the share of 
Connecticut being seventy dollars, each carriage would pay thirty- 
five dollars. 

If any State had no carriages, there could be no apportionment 
at all. This mode is too manifestly absurd to be supported, and 
has not even been attempted in debate. But two expedients have 
been proposed of a very extraordinary nature to evade the difficulty. 

1. To raise the money a tax on carriages would produce, not by 
laying a tax on each carriage uniformly, but by selecting different 
articles in different States, so that the amount paid in each State 
may be equal to the sum due upon a principle of apportionment. 



HYLTON V. UNITED STATES. 31 

' ! might pay by a tax on carraiges, another by a tax on 

I ! 1 have thought this merely an exercise of ingenuity, if it 

i<>t been pressed with some earnestness; and as this was done 

']i nen of high respectability in their profession, it deserves 

answer, though it is very difficult to give such a one. 

! . J is not an apportionment, of a tax on carriages, but of 

''• i.io'ii ■ a tax on carriages might be supposed to produce, which 

'- '[iilfi- different thing. 

2. It i'mits that congress cannot lay an uniform tax on all car- 
riage? ■ he Union, in any mode, but that they may on carriages 
in one or more States. They may therefore lay a tax on carriages 
in fourteen States, but not in the fifteenth. 

3. If congress, according to this new decree, may select carriages 
as a proper object, in one or more States, but omit them in others, 
I presume they may omit them in all, and select other articles. 

Suppose, then, a tax on carriages would produce $100,000, and 
a tax on horses a like sum, $100,000, and $100,000 were to be 
apportioned according to that mode; gentlemen might amuse 
themselves with calling this a tax on carriages, or a tax on horses, 
while not a single carriage, nor a single horse was taxed throughout 
the Union. 

4. Such an arbitrary method of taxing different States differ- 
ently, is a suggestion altogether new, and would lead, if practised, 
to such dangerous consequences that it will require very powerful 
arguments to show that that method of taxing would be in any 
manner compatible with the constitution, Mdth which at present, 
I deem it utterly irreconcilable, it being altogether destructive of 
the notion of a common interest, upon which the very principles 
of the constitution are founded, so far as the condition of the 
United States wdll admit. 

The second expedient proposed was, that of taxing carriages, 
among other things, in a general assessment. This amounts to 
saying that congress may lay a tax on carriages, but that they may 
not do it unless they blend it with other subjects of taxation. For 
this, no reason or authority has been given, and in addition to 
other suggestions offered by the counsel on that side, affords an 
irrefragable proof, that when positions plainly so untenable are 
offered to counteract the principle contended for by the opposite 
counsel, the principle itself is a right one; for, no one can doubt, 
that if better reasons could have been offered, they would not 
have escaped the sagacity and learning of the gentlemen who of- 
fered them. 



32 CASES ON CONSTITUTIONAL LAW, 

There is no necessity or propriety in determining what is, or is 
not a direct or indirect tax in all cases. 

Some difficulties may occur which we do not at present foresee. 
Perhaps a direct tax, in the sense of the constitution, can mean 
nothing but a tax on something inseparably annexed to the soil, 
something capable of apportionment under all such circum- 
stances. 

A land or a poll tax may be considered of this description. 

The latter is to be considered so particularly under the present 
constitution, on account of the slaves in the southern States, who 
give a ratio in the representation in the proportion of three to five. 

Either of these is capable of apportionment. In regard to other 
articles, there may possibly be considerable doubt. 

It is sufficient, on the present occasion, for the court to be satis- 
fied that this is not a direct tax contemplated by the constitution, 
in order to affirm the present judgment; since, if it cannot be ap- 
portioned, it must necessarily be uniform. 

I am clearly of opinion this is not a direct tax in the sense of 
the constitution, and, therefore, that the judgment ought to be 
affirmed. 

[Wilson, J., had rendered an opinion in this case in the Cir- 
cuit Court 'of Virginia, and now merely expressed his concurrence 
in the opinion of the court. Cushing, J., not having heard the 
arguments, did not deliver an opinion.] 

By the Cotjet. Let the judgment of the circuit court be 
affirmed. 



McCTJLLOCH v. THE STATE OF MAEYLAND ET AL. 
4 Wheaton, 316. Decided 1819. 

Eeeoe to the court of appeals of the State of Maryland. . . . 

[In April, 1816, Congress incorporated the Bank of the United 
States. In February, 1818, the general assembly of Maryland 
imposed "a tax on all banks, or branches thereof, in the State of 
Maryland, not chartered by the legislature." McCulloch, the cash- 
ier of the branch of the Bank of the United States established in 
the city of Baltimore, violated the latter act by issuing notes upon 
unstamped paper. The question submitted to the court for their 
decision in this case is as to the validity of the said act of the 



Mcculloch v. state of Maryland. 33 

general assembly of Maryland, on the ground of its being repug- 
nant to the constitution of the United States, and the act of con- 
gress aforesaid, or one of them.] 

Makshall, C. J., delivered the opinion of the court. 
In the case now to be determined, the defendant, a sovereign 
state, denies the obligation of a law enacted by the legislature of 
the Union; and the plaintiff, on his part, contests the validity of 
an act which has been passed by the legislature of that State. The 
constitution of our country, in its most interesting and vital 
parts, is to be considered; the conflicting powers of the govern- 
ment of the Union and of its members, as marked in that consti- 
tution, are to be discussed; and an opinion given, which may 
essentially influence the great operations of the government. No 
tribunal can approach such a question without a deep sense of its 
importance, and of the awful responsibility involved in its decision. 
But it must be decided peacefully, or remain a source of hostile 
legislation, perhaps of hostility of a still more serious nature; and 
if ''it is to be so decided, by this tribunal alone can the decision be 
made. On the supreme court of the United States has the con- 
stitution of our country devolved this important duty. 

The first question made in the cause is, has congress power to 
incorporate a bank? . . . 

[This part of the opinion is given infra, page 308.] 
It being the opinion of the court that the act incorporating the 
bank is constitutional; and that the power of establishing a 
branch in the State of Maryland might be properly exercised by 
the bank itself, we proceed to inquire:— 

3. Whethe. the State of Maryland may, without violating the 
constitution, tax that branch? 

That the power of taxation is one of vital importance; that it is 
retained by the States; that it is not abridged by the grant of a 
similar power to the government of the Union; that it is to be 
concurrently exercised by the two governments: are truths which 
have never been denied. But, such is the paramount character of 
the constitution, that its capacity to withdraw any subject from 
the action of even this power, is admitted. The States are expressly 
forbidden to lay any duties on imports or exports, except what may 
be absolutely necessary for executing their inspection laws. If 
the obligation of this prohibition must be conceded— if it may re- 
strain a State from the exercise of its taxing power on imports and 
exports; the same paramount character would seem to restrain, as 
3 



34 CASES ON CONSTITUTIONAL LAW. 

it certainly may restrain, a State from siicli other exercise of this 
power, as is in its nature incompatible with, and repugnant to, 
the constitutional laws of the Union. A law, absolutely repug- 
nant to another, as entirely repeals that other as if express terms 
of repeal were used. 

On this ground the counsel for the bank place its claim to be 
exempted from the power of a State to tax its operations. There 
is no express provision for the case, but the claim has been sus- 
tained on a principle which so entirely pervades the constitution, 
is so intermixed with the materials which compose it, so inter- 
woven with its web, so blended with its texture, as to be incapable 
of being separated from it, without rending it into shreds. 

This great principle is, that the constitution and the laws made 
in pursuance thereof are supreme; that they control the consti- 
tution and laws of the respective States, and cannot be controlled 
by them. From this, which may be almost termed an axiom, 
other propositions are deduced as corollaries, on the truth or error 
of which, and on their application to this case, the cause has been 
supposed to depend. These are, 1. That a poAver to create implies 
a power to preserve. 2. That a power to destroy, if wielded by a 
different hand, is hostile to, and incompatible with, these powers 
to create and preserve. 3. That where this repugnancy exists, 
that authority which is supreme must control, not yield to that 
over which it is supreme. 

These propositions, as abstract truths, would, perhaps, never be 
controverted. Their application to this case, however, has been 
denied; and, both in maintaining the af&rmative and the negative, 
a splendor of eloquence, and strength of argument, seldom, if ever, 
surpassed, have been displayed. 

The power of congress to create, and of course to continue, the 
bank, was the subject of the preceding part of this opinion; and 
is no longer to be considered as questionable. 

That the power of taxing it by the States may be exercised so as 
to destroy it, is too obvious to be denied. But taxation is said to 
be an absolute power, which acknowledges no other limits than 
those expressly prescribed in the constitution, and like sovereign 
power of every other description, is trusted to the discretion of 
those who use it. But the vei7 terms of this argument admit that 
the sovereignty of the State, in the article of taxation itself, is 
subordinate to, and may be controlled by, the constitution of the 
United States. How far it has been controlled by that instrument 
must be a question of construction. In making this construction, 
no principle not declared, can be admissible, which would defeat 



Mcculloch v. state of Maryland. 35 

the legitimate operations of a supreme government. It is of the 
very essence of supremacy to remove all obstacles to its action 
within its own sphere, and so to modify every power vested in sub- 
ordinate governments, as to exempt its own operations from their 
own influence. This effect need not be stated in terms. It is so 
involved in the declaration of supremacy, so necessarily implied 
in it, that the expression of it could not make it more certain. We 
must, therefore, keep it in view while construing the constitution. 

The argument on the part of the State of Maryland, is, not that 
the States may directly resist a law of congress, but that they may 
exercise their acknowledged powers upon it, and that the consti- 
tution leaves them this right in the confidence that they will not 
abuse it. 

Before we proceed to examine this argument, and to subject it 
to the test of the constitution, we must be permitted to bestow a 
few considerations on the nature and extent of this original right 
of taxation, which is acknowledged to remain with the States. It 
is admitted that the power of taxing the people and their property 
is essential to the very existence of government, and may be legiti- 
mately exercised on the objects to which it is applicable, to the 
utmost extent to which the government may choose to carry it. 
The only security against the abuse of this power, is found in the 
structure of the government itself. In imposing a tax the legisla- 
ture acts upon its constituents. This is in general a sufficient 
security against erroneous and oppressive taxation. 

The people of a State, therefore, give to their government a 
right of taxing themselves and their property, and as the exigencies 
of government cannot be limited, they prescribe no limits to the 
exercise of this right, resting confidently on the interest of the 
legislator, and on the influence of the constituents over their rep- 
resentatives, to guard them against its abuse. But the means 
employed by the government of the Union have no such security, 
nor is the right of a State to tax them sustained by the same 
theory. Those means are not given by the people of a particular 
State, not given by the constituents of the legislature, which 
claim the right to tax them, but by the people of all the States. 
They are given by all, for the benefit of all — and upon theory, 
should be subjected to that government only which belongs to all. 

It may be objected to this definition, that the power of taxation 
is not confined to the people and property of a State. It may be 
exercised upon every object brought within its jurisdiction. 

This is true. But to what source do we trace this right? It is 
obvious, that it is an incident of sovereignty, and is co-extensive 



36 CASES ON CONSTITUTIONAL LAW. 

witli that to which it is an incident. All subjects over which the 
sovereign power of a State extends, are objects of taxation; bnt 
those over which it does not extend, are, npon the soundest prin- 
ciples, exempt from taxation. This proposition may almost be pro- 
nounced self-evident. 

The sovereignty of a State extends to everything which exists 
by its own authority, or is introduced by its permission; but does 
it extend to those means which are employed by congress to carry 
into execution powers conferred on that body by the people of the 
United States? We think it demonstrable that it does not. Those 
powers are not given by the people of a single State. They are 
given by the people of the United States, to a government whose 
laws, made in pursuance of the constitution, are declared to be 
supreme. Consequently, the people of a single State cannot confer 
a sovereignty which will extend over them. 

If we measure the power of taxation residing in a State, by the 
extent of sovereignty which the people of a single State possess, 
and can confer on its government, we have an intelligible stand- 
ard, applicable to every case to which the power may be applied. 
We have a principle which leaves the power of taxing the people 
and property of a State unimpaired; which leaves to a State the 
command of all its resources, and which places beyond its reach, 
all those powers which are conferred by the people of the United 
States on the government of the Union, and all those means 
which are given for the purpose of carrying those powers into exe- 
cution. We have a principle which is safe for the States, and safe 
for the Union. We are relieved, as we ought to be, from clashing 
sovereignty; from 'interfering powers; from a repugnancy be- 
tween a right in one government to pull down what there is an 
acknowledged right in another to build up; from the incompati- 
bility of a right in one government to destroy what there is a 
right in another to preserve. We are not driven to the perplexing 
inquiry, so unfit for the judicial department, what degree of tax- 
ation is the legitimate use, and what degree may amount to the 
abuse of the power. The attempt to use it on the means em- 
ployed by the government of the Union, in pursuance of the con- 
stitution, is itself an abuse, because it is the usurpation of a power, 
which the people of a single State cannot give. 

We find, then, on just theory, a total failure of this original right 
to tax the means employed by the government of the Union, for 
the execution of its powers. The right never existed, and the 
question whether it has been surrendered, cannot arise. 

But, waiving this theory for the present, let us resume the in- 



Mcculloch v. state of Maryland. 3? 

quiry, whether this power can be exercised by the respective States, 
consistently with a fair construction of the constitution? 

That the power to tax involves the power to destroy; that the 
power to destroy may defeat and render useless the power to cre- 
ate; that there is a plain repugnance, in conferring on one gov- 
ernment a power to control the constitutional measvires of another, 
which other, with respect to those very measures, is declared to 
be supreme over that which exerts the control, are propositions 
not to be denied. But all inconsistencies are to be reconciled by 
the magic of the word confidence. Taxation, it is said, does not 
necessarily and unavoidably destroy. To carry it to the excess 
of destruction would be an abuse, to presume which, would banish 
that confidence which is essential to all government. 

But is this a case of confidence? Would the people of any one 
State trust those of another with a power to control the most 
insignificant operations of their state government? We know they 
would not. "Wliy, then, should we suppose that the people of any ^ 
one State should be willing to trust those of another with a 
power to control the operations of a government to which they 
have confided their most important and most valuable interests?* 
In the legislature of the' Union alone, are all represented. The 
legislature of the Union alone, therefore, can be trusted by the 
people with the power of controlling measures which concern all, 
in the confidence that it will not be abused. This, then, 'is not a 
case of confidence, and we must consider it as it really is. 

If we apply the principle for which the State of Maryland con- 
tends, to the constitution generally, we shall find it capable of 
changing totally the character of that instrument. We shall 
find it capable of arresting all the measures of the government, 
and of prostrating it at the foot of the States. The American 
people have declared their constitution, and the laws made in 
pursuance thereof, to be supreme; but this principle would trans- 
fer the supremacy, in fact, to the State. 

If the States may tax one instrument, employed by the govern- 
ment in the execution of its powers, they may tax any and every 
other instrument. They may tax the mail; they may tax the 
mint; they may tax patent rights; they may tax the papers of the 
custom-house; thevmay tax Judicial process; they may tax all the 
means employed by the government, to an excess which would 
defeat all the ends of government. This was not intended by the 
American people. They did not design to make their govern- 
ment dependent on the States. 

Gentlemen say, they do not claim the right to extend State 



38 CASES ON CONSTITUTIONAL LAW. 

taxation to these objects. They limit their pretensions to prop- 
erty. But on what principle is this distinction made? Those 
who make it have furnished no reason for it, and the principle for 
Avhich they contend denies it. They contend that the power of 
taxation has no other limit than is found in the 10th section of 
the 1st article of the constitution; that, with respect to every- 
thing else, the power of the States is supreme, and admits of no 
control. If this be true, the distinction between property and 
other subjects to which the power of taxation is applicable, is 
merely arbitrary, and can never be sustained. This is not all. 
If the controlling power of the States be established; if their 
supremacy as to taxation be acknowledged; what is to restrain their 
exercising this control in any shape they may please to give it? 
Their sovereignty is not confined to taxation. That is not the 
only mode in which it might be displayed. The question^ is, in 

Jruth, a question of supremacy; and if the right of the States to 
tax the means employed by the general government be conceded, 
the declaration that the constitution, and the laws made in pur- 
suance thereof, shall be the supreme law of the land, is empty 

'and unmeaning declamation. 

In the course of the argument, the Federalist has been quoted; 
and the opinions expressed by the authors of that work have 
been justly supposed to be entitled to great respect in expounding 
the constitution. No tribute can be paid to them which exceeds 
their merit; but in applying their opinions to the cases which 
may arise in the progress of our government, a right to judge of 
their correctness must be retained; and, to understand the argu- 
ment, we must examine the proposition it maintains, and the 
objections against which it is directed. The subject of those 
numbers, from which passages have been cited, is the unlimited 
power of taxation which is vested in the general government. The 
objection to this unlimited power, which the argument seeks to 
remove, is stated with fullness and clearness. It is "that an in- 
definite power of taxation in the latter (the government of the 
Union) might, and probably would, in time, deprive the former 
(the government of the States) of the means of providing for 
their own necessities; and would subject them entirely to the mercy 
of the national legislature. As the laws of the Union are to be- 
come the supreme law of the land; as it is to have power to 
pass all laws that may be necessary for carrying into execution 
the authorities with which it is proposed to vest it; the national 
government might at any time abolish the taxes imposed for 
State objects, upon the pretense of an interference with its own. 



Mcculloch v. state of Maryland. 39 

It might allege a necessity for doing this, in order to give effi- 
cacy to the national revenues; and thus all the resources of tax- 
ation might, by degrees, become the subjects of federal monopoly, 
to the entire exclusion and destruction of the state governments." 

The objections to the constitution which are noticed in these 
numbers, were to the undefined power of the government to tax, 
not to the incidental privilege of exempting its own measures from 
State taxation. The consequences apprehended from this unde- 
fined power were, that it would absorb all the objects of taxation, 
"to the exclusion and destruction of the state governments." The 
arguments of the Federalist are intended to prove the fallacy of 
these apprehensions; not to prove that the government was in- 
capable of executing any of its powers, without exposing the 
means it employed to the embarrassments of State taxation. Argu- 
ments urged against these objections, and these apprehensions, are 
to be understood as relating to the points they mean to prove. 
Had the authors of those excellent essays been asked, whether they 
contended for that construction of the constitution, which would 
place within the reach of the States those measures which the 
government might adopt for the execution of its powers; no man, 
who has read their instructive pages, will hesitate to admit, that 
their answer must have been in the negative. 

It has also been insisted, that, as the power of taxation in the 
general and state governments is acknowledged to be concurrent, 
every argument which would sustain the right of the general gov- 
ernment to tax banks chartered by the States, will equally sustain 
the right of the States to tax banks chartered by the general 
government. 

But the two cases are not on the same reason. The people of 
all the States have created the general government, and have con- 
ferred upon it the general power of taxation. The people of all 
the States, and the States themselves, are represented in congress, 
and, by their representatives, exercise this power. When they tax 
the chartered institutions of the States, they tax their constitu- 
ents; and these taxes must be uniform. But when a State taxes 
the operations of the government of the United States, it acts 
upon institutions created, not by their own constituents, but by 
people over whom they claim no control. It acts upon the meas- 
ures of a government created by others as well as themselves, for 
the benefit of others in common with themselves. The difference 
is that which always exists, and always must exist, between the 
action of the whole on a ])art, and the action of a part on the 
whole — between the laws of a government declared to be supreme. 



40 CASES ON CONSTITUTIONAL LAW. 

and those of a government which, when in ojDposition to those laws, 
is not supreme. 

But if the full application of this argument could be admitted, 
it might bring into question the right of congress to tax the state 
banks, and could not prove the right of the States to tax the Bank 
of the United States. 

The court has bestowed on this subject its most deliberate con- 
sideration. The result is a conviction that the States have no 
power, by taxation or otherwise, to retard, impede, burden, or in 
any manner control, the operations of the constitutional laws 
enacted by congress to carry into execution the powers vested in 
the general government. This is, we think, the unavoidable conse- 
quence of that supremacj^ which the constitution has declared. 

We are unanimously of opinion, that the law passed by the 
legislature of Mar3'land, imposing a tax on the Bank of the United 
States, is unconstitutional and void. 

This opinion does not deprive the States of any resources which 
they originally possessed. It does not extend to a tax paid by 
the real property of the bank, in common with the other real 
property within the State, nor to a tax imposed on the interest 
which the citizens of Maryland may hold in this institution, in 
common with other property of the same description throughout 
the State. But this is a tax on the operations of the bank, and is, 
consequently, a tax on the operation of an instrument employed 
by the government of the Union to carry its powers into execution. 
Such a tax must be unconstitutional. 

Judgment. This cause came on to be heard on the transcript 
of the record of the court of appeals of the State of Maryland, 
and was argued by counsel. On consideration whereof, it is the 
opinion of this court that the act of the legislature of Maryland 
is contrary to the constitution of the United States, and void. 

IsToTE. — "A case could not be selected from the decisions of the 
Supreme Court of the United States, superior to this one of Mc- 
CuUoch V. Maryland, for the clear and satisfactory manner in 
which the supremacy of the laws of the Union have been main- 
tained by the court, and an undue assertion of State power over- 
ruled and defeated." Kent's Commentaries, I., 428. 



WESTON ET AL v. CITY OF CHARLESTON. 41 

WESTON ET AL. v. THE CITY COUNCIL OF CHARLESTON. 
2 Peters, 449. Decided 1829. 

Error to the constitutional court of South Carolina. By an 
ordinance of the city of Charleston, "stock of the United States" 
was, among other things, made taxable. The plaintiffs, as owners 
of such stock, applied to the court of common pleas of the Charles- 
ton district for a prohibition to restrain the city council from 
taxing that stock, on the ground that the tax would be incon- 
sistent with the constitution of the United States. The prohi- 
bition having been granted, the proceedings were removed into 
the constitutional court, where four of the seven judges being 
of opinion that the tax Avould be valid, reversed the order for a 
prohibition, and thereupon this writ of error was brought. . . . 

Marshall, C. J., delivered the opinion of the court. . . . 

. . . This brings us to the main question. Is the stock 
issued for loans made to the government of the United States liable 
to be taxed by States and corporations? 

Congress has power "to borrow money on the credit of the 
United States." The stock it issues is the evidence of a debt 
created by the exercise of this power. The tax in question is a 
tax upon the contract subsisting between the government and the 
individual. It bears directly upon that contract, while subsist- 
ing and in full force. The power operates upon the contract the 
instant it is framed, and must imply a right to affect that con- 
tract. 

If the States and corporations throughout the Union, pos- 
sess the power to tax a contract for the loan of money, what shall 
arrest this principle in its application to every other contract? 
What measure can government adopt which will not be exposed to 
its influence? 

But it is unnecessary to pursue this principle through its di- 
versified application to all the contracts, and to the various op- 
erations of government. No one can be selected which is of more 
vital interest to the community than this of borrowing money on 
the credit of the United States. No power has been conferred by the 
American people on their government, the free and unburdened 
exercise of which more deeply affects every member of our repub- 
lic. In war, when the honor, the safety, the independence of the 
nation are to be defended, when all its resources are to be strained 
to the utmost, credit must be brought in aid of taxation, and the 



43 CASES ON CONSTITUTIONAL LAW. 

abundant revenue of peace and prosperity must be anticipated to 
supply the exigencies, the urgent demands of the moment. The 
people, for objects the most important which can occur in the 
progress of nations, have empowered their government to make 
these anticipations, "to borrow money on the credit of the United 
States." Can anything be more dangerous, or more injurious, 
than the admission of a principle which authorizes every State and 
every corjDoration in the Union v^hich possesses the right of taxa- 
tion, to burden the exercise of this power at their discretion? 

If the right to impose the tax exists, it is a right which in its 
nature acknowledges no limits. It may be carried to any extent 
within the jurisdiction of the State or corporation which im- 
poses it, which the will of each State and corporation may pre- 
scribe. A power which is given by the whole American people for 
their common good, which is to be exercised at the most critical 
periods for the most important purposes, on the free exercise 
of which the interests certainly, perhaj)s the liberty of the whole 
may depend; may be burdened, impeded, if not arrested, by any 
of the organized parts of the confederacy. 

In a society formed like ours, with one supreme government 
for national purposes, and numerous state governments for other 
purposes, in many respects independent, and in the uncontrolled 
exercise of many important powers, occasional interferences ought 
not to surprise us. The power of taxation is one of the most 
essential to a State, and one of the most extensive in its opera- 
tion. The attempt to maintain a rule which shall limit its exer- 
cise, is undoubtedly among the most delicate and difficult duties 
which can devolve on those whose province it is to expound the 
supreme law of the land in its application to the cases of individ- 
uals. This duty has more than once devolved on this court. In 
the performance of it we have considered it as a necessary conse- 
quence from the supremacy of the government of the whole, that 
its action in the exercise of its legitimate powers, should be free 
and unembarrassed by any conflicting powers in the possession of 
its parts;. that the powers of a State cannot rightfully be so exer- 
cised as to impede and obstruct the free course of those meas- 
ures which the government of the States united may rightfully 
adojDt. 

This subject was brought before the court in the case of Mc- 
Culloch V. The State of Maryland, 4 A^^ieaton, 316, when it was 
thoroughly argued and deliberately considered. The question 
decided in that case bears a near resemblance to that which is 
involved in this. It was discussed at the bar in all its relations. 



WESTON ET AL v. CITY OF CHARLESTON. 43 

and examined by the court with its utmost attention. We will 
not repeat the reasoning which conducted us to the conclusion 
thus formed, but that conclusion was that "all subjects over which 
the sovereign power of a State extends, are objects of taxation; 
but those over which it does not extend, are upon the soundest 
principles exempt from taxation." ''The sovereignty of a State 
extends to everything which exists by its own authority, or is 
introduced by its permission;" but not "to those means which are 
employed by congress to carry into execution powers conferred on 
that body by the people of the United States." "The attempt to 
use" the power of taxation "on the means employed by the gov- 
ernment of the Union in pursuance of the constitution, is itself 
an abuse, because it is the usurjDation of a power which the people 
of a single State cannot give." 

The court said in that case, that "the States have no power 
by taxation, or otherwise, to retard, impede, burden, or in any 
manner control the operation of the constitutional laws enacted 
by congress, to carry into execution the powers vested in the gen- 
eral government." 

We retain the opinions which were then expressed. A con- 
traot made by the government in the exercise of its power, to 
borrow money on the credit of the United States, is undoubtedly 
independent of the will of any State in which the individual who 
lends may reside, and is undoubtedly an operation essential to 
the important objects for which the government was created. It 
ought, therefore, on the principles settled in the case of McCulloch 
V. The State of Maryland, to be exempt from state taxation, and 
consequently from being taxed by corporations deriving their 
power from States. 

It is admitted that the power of the government to borrow 
money cannot be directly opposed, and that any law directly ob- 
structing its operation would be void; but a distinction is taken 
between direct opposition and those measures which may conse- 
quentially affect it; that is, that a law prohibiting loans to the 
United States would be void, but a tax on them to any amount 
is allowable. 

It is, we think, impossible not to perceive the intimate con- 
nection which exists between these two modes of acting on the 
subject. 

It is not the want of original power in an independent sovereign 
State, to prohibit loans to a foreign government, which restrains 
the legislature from direct opposition to those niade by the United 
States. The restraint is imposed by our constitution. The Amer- 



44 CASES ON CONSTITUTIONAL LAW. 

ican people have conferred the poT\'er of horrowing money on their 
government, and by making that government supreme, have 
shielded its action, in the exercise of this power, from the action 
of the local governments. The grant of the power is incompatible 
with a restraining or controlling power, and the declaration of 
supremacy is a declaration that no such restraining or controlling 
power shall be exercised. 

The right to tax the contract to any extent, when made, must 
operate upon the power to borrow before it is exercised, and have 
a sensible influence on the contract. The extent of this influence 
depends on the will of a distinct government. To any extent, 
hcrn-ever inconsiderate, it is a burden on the operations of govern- 
ment. It may be carried to an extent which shall arrest them 
entirely. 

It is admitted by the counsel for the defendants, that the power 
to tax stock must affect the terms on which loans will be made; 
but this objection, it is said, has no more weight when urged 
against the application of an acknowledged power to government 
stock, than if urged against its application to lands sold by the 
United States. 

The distinction is, we think, apparent. Wlien lands are sold, no 
connection remains between the purchaser and the government. 
The lands purchased become a part of the mass of property in the 
country with no implied exemption from common burdens. All 
lands are derived from the general or particular government, and 
all lands are subject to taxation. Lands sold are in the condition 
of money borrowed and repaid. Its liability to taxation in any 
form it may then assume is not questioned. The connection be- 
tween the borrower and the lender is dissolved. It is no burden 
on loans, it is no impediment to the power of borrowing, that the 
money, when repaid, loses its exemption from taxation. But a tax 
upon debts due from the government, stands, we think, on very dif- 
ferent principles from a tax on lands which the government has 
sold. 

"The Federalist" has been quoted in the argument, and an elo- 
quent and well-merited eulogy has been bestowed on the great 
statesman who is supposed to be the author of the number from 
which the quotation was made. This high authority was also relied 
upon in the case of McCulloch v. The State of Maryland, and was 
considered by the court. Without repeating what was then said, 
we refer to it as exhibiting our view of the sentiments expressed 
on this subject by the authors of that work. 

It has been supposed that a tax on stock comes within the 



LICENSE TAX CASES. 45 

exceptions stated in the case of MeCullocli v. The State of Mary- 
land. We do not think so. The bank of the United States is an 
instrument essential to the fiscal operations of the government, 
and the power which might be exercised to its destruction was 
denied. But property acquired by that corporation in a State was 
supposed to be placed in the same condition with property acquired 
by an individual. 

The tax on government stock is thought by this court to be a 
tax on the contract, a tax on the power to borrow money on the 
credit of the United States, and consequently to be repugnant 
to the constitution. 

We are, therefore, of opinion that the judgment of the constitu- 
tional court of the State of South Carolina, reversing the order 
made by the court of common pleas, awarding a prohibition to 
the city council of Charleston, to restrain them from levying a tax 
imposed on six and seven per cent, stock of the United States, 
under an ordinance to raise supplies to the use of the city of 
Charleston for the year 1823, is erroneous in this; that the said 
constitutional court adjudged that the said ordinance was not 
repugnant to the constitution of the United States; whereas, this 
court is of opinion that such repugnancy does exist. We are, there- 
fore, of opinion that the said judgment ought to be reversed and 
annulled, and the cause remanded to the constitutional court for 
the State of South Carolina, that further proceedings may be 
had therein according to law. 

[Justices Johnson and Thompson delivered dissenting opin- 
ions.] 



LICENSE TAX CASES. 
5 Wallace, 462. Decided 1866. 

[By the internal revenue act of 1864, subsequently amended. 
Congress enacted that all persons intending to engage in certain 
occupations, including the selling of lottery tickets and the retail- 
ing of liquors, should first obtain a license from the United States. 
(See 13 Stat, at Large, 248, 249, 253, 472, 485; 14 Id., 113, 116, 
137, 301.) 

In Few York and New Jersey, the selling of lottery tickets, 
and in ]\Tassachusetts, the retailing of liquors (except in certain 
specified cases), were strictly forbidden. 



46 CASES ON CONSTITUTIONAL LAW. 

In this condition of statute law, national and State, seven cases 
Avere brought before the Supreme Court. All of them arose 
under the provisions of the internal revenue acts relating to 
licenses for selling liquors and dealing in lotteries, and to special 
taxes on the latter business. 

In five of the cases the general question was: Can the defend- 
ants be equally convicted upon the several indictments found 
against them for not having complied with the acts of Congress 
by taking out and paying for the required licenses to carry on the 
business in which they were engaged, such business being wholly , 
prohibited by the laws of the several States in which it was car- 
ried on? 

In the other two cases the general question was: Could the de- 
fendants be legally convicted upon an indictment for being en- 
gaged in a business on which a special tax is imposed by acts of 
Congress, without having paid such a special tax, notwithstanding 
that such business was, and is wholly prohibited by the laws of 
Is^ew York?] 

The Chief Justice, having stated the case, delivered the opin- 
ion of the court. 

In the arg-ument of all the cases here before the court, it was 
strenuously maintained by counsel for the defendants that the 
imposition lof penalties for carrying on any business prohibited by 
State laws, without payment for the license or special tax required 
by Congress, is contrary to public policy. . . . This court can 
know nothing of public policy except from the Constitution and 
the laws, and the course of administration and decision. It has 
no legislative powers. It cannot amend or modify any legislative 
acts. It cannot examinei questions as expedient or inexpedient, 
as politic or impolitic. Considerations of that sort must, in general, 
be addressed to the legislature. Questions of policy determined 
there are concluded here. . . . 

We come now to examine a more serious objection to the legisla- 
tion of Congress in relation to the dealings in controversy. It was 
argued for the defendants in error that a license to carry on a par- 
ticular business gives an authority to carry it on; that the deal- 
ings in controversy were parcel of the internal trade of the State 
in which the defendants resided; that the internal trade of a State 
is not subject, in any respect, to legislation by Congress, and can 
neither be licensed nor prohibited by its authority; that licenses 
for such trade, granted under acts of Congress, must therefore be 
absolutely null and void; and, consequently, that penalties for 



LICENSE TAX CASES. 47 

carrying on such trade without such license could not be constitu- 
tionally imposed. 

This series of propositions, and the conclusion in which it ter- 
minates, depends on the postulate that a license necessarily con- 
fers an authority to carry on the licensed business. But do the 
licenses required by the acts of Congress for selling liquor and lot- 
tery tickets confer any authority whatever? 

It is not doubted that where Congress possesses constitutional 
power to regulate trade or intercourse, it may regulate by means of 
licenses as well as in other modes; and, in case of such regula- 
tion, a license will give to the licensee authority to do whatever 
is authorized by its terms. 

Thus, Congress having power to regulate commerce with foreign 
nations, and among the several States, and with the Indian tribes, 
may, without doubt, provide for granting coasting licenses, licenses 
to pilots, licenses to trade with the Indians, and any other licenses 
necessary or proper for the exercise of that great and extensive 
power; and the same observation is applicable to every other power 
of Congress, to the exercise of which the granting of licenses may 
be incident. All such licenses confer authority, and give rights 
to the licensee. 

But very different considerations apply to the internal com- 
merce or domestic trade of the States. Over this commerce and 
trade Congress has no power of regulation nor any direct control. 
This power belongs exclusively to the States. No interference 
by Congress with the business of citizens transacted within a State 
is warranted by the Constitution, except such as is strictly inci- 
dental to the exercise of powers clearly granted to the legislature. 
The power to authorize a business within a State is plainly repug- 
nant to the exclusive power of the State over the same subject. 
It is true that the power of Congress to tax is a very extensive 
power. It is given in the Constitution, with only one exception 
and only two qualifications. Congress cannot tax exports, and it 
must impose direct taxes by the rule of apportionment, and indirect 
taxes by the rule of uniformity. Thus limited, and thus only, 
it reaches every subject, and may be exercised at discretion. But 
it reaches only existing sul:)jects. Congress cannot authorize a trade 
or business within a State in order to tax it. 

If, therefore, the licenses under consideration must be regarded 
as giving authority to carry on the branches of business which 
they license, it might be difficult, if not impossible, to reconcile 
the granting of them with the Constitution. 

But it is not necessary to regard these laws as giving such author- 



48 CASES ON CONSTITUTIONAL LAW. 

ity. So far as they relate to trade within State limits, they give 
none, and can give none. They simply express the purpose of the . 
government not to interfere by penal proceedings with the trade 
nominally licensed, if the required taxes are paid. The power to 
tax is not questioned, nor the power to impose penalties for non- 
payment of taxes. The granting of a license, therefore, must be 
regarded as nothing more than a mere form of imposing a tax, and 
of implying nothing except that the licensee shall be subject to no 
penalties under national law, if he pays it. 

This construction is warranted by the practice of the govern- 
ment from its organization. As early as 1794 retail dealers in 
wines or in foreign distilled liquors were required to obtain and 
pay for licenses, and renew them annually, and penalties were im- 
posed for carrying on the business without compliance with the 
law.^ In 1802 these license-taxes and the other excise or internal 
taxes, which had been imposed under the exigencies of the time, 
being no longer needed, were abolished.^ In 1813 revenue from 
excise was again required, and laws were enacted for the licensing 
of retail dealers in foreign merchandise, as well as to retail dealers 
in wines and various descriptions of liquors.^ These taxes also 
were abolished after the necessity for them had passed away, in 
1817.* ISTo claim was ever made that the licenses thus required 
gave authority to exercise trade or carry on business within a State. 
They were regarded merely as a convenient mode of imposing taxes 
on several descriptions of business, and of ascertaining the par- 
ties from whom such taxes were to be collected. 

With this course of legislation in view, we cannot say that there 
is anything contrary to the Constitution in these provisions of the 
recent or existing internal revenue acts relating to licenses. 

Nor are we able to perceive the force of the other objection made 
in argument, that the dealings for which licenses are required be- 
ing prohibited by the laws of the State, cannot be taxed by the 
National government. There would be great force in it if the 
licenses were regarded as giving authority, for then there would 
be a direct conflict between National and State legislation on a 
subject which the Constitution places under the exclusive con- 
trol of the States. 

But, as we have already said, these licenses give no authority. 
They are mere receipts for taxes. And this would be, true had the 
internal revenue act of 1864, like those of 1794 and 1813, been * 

1 1 Stat, at Large, 377. s 3 Id., 72. 

2 Id.. 148. 4 Id.. 401. 



GRAND A.LL v. STATE OF NEVADA. 49 

silent on this head. But it was not silent. It expressly provided, 
in section sixty-seven, that no license provided for in it should, 
if granted, be construed to authorize any business with any State 
or Territory prohibited by the laws thereof, or so as to prevent the 
taxation of the same business by the State. This provision not 
only recognizes the full control by the State of business carried 
on within their limits, but extends the same principle, so far as 
such business licensed by the national government is concerned, 
to the Territories. 

There is nothing hostile or contradictory, therefore, in the acts 
of Congress to the legislation of the States. What the latter pro- 
hibits, the former, if the business is found existing notwithstand- 
ing the prohibition, discourages by taxation. The two lines of 
legislation proceed in the same direction, and tend to the same 
result. It would be a judicial anomaly, as singular as indefensi- 
ble, if we should hold a violation of the laws of the State to be 
a justification for the violation of the laws of the Union. 

These considerations require an affirmative answer to the first 
general question, whether the several defendants, charged with 
carrying on business prohibited by State laws, without the licenses 
required by acts of Congress can be convicted ai^d condemned to 
pay the penalties imposed by these acts? . . . 



GRAND ALL v. STATE OF NEVADA. 
6 Wallace, 35. Decided 1867. 

Error to the Supreme Court of Nevada. 

In 1865, the legislature of Nevada enacted that "there shall be 
levied and collected a capitation tax of one dollar upon every per- 
son leaving the State by any railroad, stage-coach, or other vehicle 
engaged or employed in the business of transporting passengers 
for hire," and that the proprietors, owners, and corporations so 
engaged should pay the said tax of one dollar for each and every 
person so conveyed or transported from the State. For the pur- 
pose of collecting the tax, another section required from per- 
sons engaged in such business, or their agents, a report every 
month, under oath, of the number of passengers so transported, 
and the payment of the tax to the sheriff or other proper officer. 

With the statute in existence, Crandall, who was the agent of a 
4 



50 CASES ON CONSTITUTIONAL LAW. 

stage company engaged in carrying passengers through the State, 
of Nevada, was arrested for refusing to report the number of pas- 
sengers that had been carried by the coaches of his company, and 
for refusing to pay the tax of one dollar imposed on each passen- 
ger by the law of that State. He pleaded that the law of the State 
under which he was prosecuted was void, because it was in con- 
flict with the Constitution of the United States; and his plea 
being overruled, the case came into the Supreme Court of the State- 
That court — considering that the tax laid was not an impost on 
"exports," nor an interference with the power of Congress "to 
regulate commerce among the several States" — decided against 
the right thus set up under the Federal Constitution. Its judg- 
ment was now here for review. . . . 

Me. Justice Millee delivered the opinion of the court. 

The question for the first time presented to the court by this 
record is one of importance. The proposition to be considered 
is the right of a State to levy a tax upon persons residing in the 
State who may wish to get out of it, and upon persons not residing, 
in it who may have occasion to pass through it. 

It is to be regretted that such a question should be submitted 
to our consideration, with neither brief nor argument on the 
part of plaintiff in error. But our regret is diminished by the 
reflection, that the principles which must govern its determination, 
have been the subject of much consideration in cases heretofore 
decided by this court. 

It is claimed by counsel for the State that the tax thus levied 
is not a tax upon the passenger, but upon the business of the 
carrier who transports him. 

If the act were much more skillfully drawn to sustain this hy- 
pothesis than it is, we should be very reluctant to admit that ,any 
form of words, which had the effect to compel every person travel- 
ing through the country by the common and usual modes of public 
conveyance to pay a specific sum to the State, was not a tax upon 
the right thus exercised. The statute before us is not, however,, 
embarrassed by any nice difficulties of this character. The lan- 
guage which we have just quoted is, that there shall be levied and 
collected a capitation tax upon every person leaving the State by 
any railroad or stage-coach; and the remaining provisions of the 
act, which refer to this tax, only provide a mode of collecting it. 
The officers and agents of the railroad companies, and the proprie- 
tors of the stage-coaches are made responsible for this, and so be- 
come the collectors of the tax. 



CRANDALL v. STATE OF NEVADA, 51 

We shall have occasion to refer hereafter somewhat in detail, 
to the opinions of the Judges of this court in The Passenger Cases/ 
in which there were wide differences on several points involved in 
the case before us. In the case from New York then under consid- 
eration, the statute provided that the health commissioner should 
be entitled to demand and receive from the master of every vessel 
that should aiTive in the port of New York, from a foreign port, 
one dollar and fifty cents for every cabin passenger, and one dollar 
for each steerage passenger, and from each coasting vessel, twenty- 
five cents for every person on board. That statute does not use 
language so strong as the Nevada statute, indicative of a personal 
tax on the passenger, but merely taxes the master of the vessel ac- 
cording to the number of his passengers; but the court held it 
to be a tax upon the passenger, and that the master was the agent 
of the State for its collection. Chief Justice Taney, while he 
differed from the majority of the court, and held the law to be 
valid, said of the tax levied by the analogous statute of Massa- 
chusetts, that "its payment is the condition upon which the State 
permits the alien passenger to come on shore and mingle with 
its citizens, and to reside among them. It is demanded of the cap- 
tain; and not from every separate passenger, for convenience of 
collection. But the burden evidently falls upon the passenger, and 
he, in fact, pays it, either in the enhanced price of his passage 
or directly to the captain before he is allowed to embark for the 
voyage. The nature of the transaction, and the ordinary course 
of business, show that this must be so." 

Having determined that the statute of Nevada imposes a tax 
upon the passenger for the privilege of leaving the State, or pass- 
ing through it by the ordinary mode of passenger travel, we pro- 
ceed to inquire if it is for that reason in conflict with the Con- 
stitution of the United States. 

In the argument of the counsel for the defendant in error, and 
in the opinion of the Supreme Court of Nevada, which is found 
in the record, it is assumed that this question must be decided 
by an exclusive reference to two provisions of the Constitution, 
namely: that which forbids any State, without the consent of 
Congress, to lay any imposts or duties on imports or exports, and 
that which confers on Congress the power to regulate commerce 
with foreign nations and among the several States. 

The question as thus narrowed is not free from difficulties. Can 
a citizen of the United States traveling from one part of the Union 

17 Howard, 283. 



52 CASES ON CONSTITUTIONAL LAW. 

to another be called an export? It was insisted in The Passenger 
Cases, to which we have already referred, that foreigners coming 
to this country were imports within the meaning of the Constitu- 
tion, and the provision of that instrument that the migration 
or importation of such persons as any of the States then existing 
should think proper to admit, should not be prohibited prior to 
the year 1808, but that a tax might be imposed on such impor- 
tation, was relied on as showing that the word import, applied to 
persons as well as to merchandise. It was answered that this 
latter clause had exclusive reference to slaves, who were property 
as well as persons, and therefore proved nothing. While some 
of the judges who concurred in holding those laws unconstitu- 
tional, gave as one of their reasons that they were taxes on im- 
ports, it is evident that this view did not receive the assent of the 
majority of the court. The application of this provision of the 
Constitution to the proposition which we have stated in regard 
to the citizen, is still less satisfactory than it would be to the case 
of foreigners migrating to the United States. 

But it is unnecessary to consider this point further in the view 
which we have taken of the case. 

As regards the commerce clause of the Constitution, two prop- 
ositions are advanced on behalf of the defendant in error. 1. 
That the tax imposed by the State on passengers is not a regula- 
tion of commerce. 2. That if it can be so considered, it is one 
of the powers which the State can exercise, until Congress has so 
legislated as to indicate its intention to exclude State legislation 
on the same subject. 

The proposition that the power to regulate commerce, as granted 
to Congress by the Constitution, necessarily excludes the exercise 
by the States of any of the powers thus granted, is one which 
has been much considered in this court, and the earlier discus- 
sions left the question in much doubt. As late as the January 
Term, 1849, the opinions of the judges in The Passenger Cases 
show that the question was considered to be one of much impor- 
tance in those cases, and was even then unsettled, though previous 
decisions of the court were relied on by the judges themselves 
as deciding it in different ways. It was certainly, so far as those 
cases affected it, left an open question. 

In the case of Cooley v. Board of "Wardens,^ four years later, 
the same question came directly before the court in reference to 
the local laws of the port of Philadelphia concerning pilots. 

1 12 Howard, 299. 



CRANDALL v. STATE OF NEVADA. 53 

. . . Perhaps no more satisfactory solution has ever been given 
of this vexed question than the one furnished by the court in that 
case. . . . 

It may be that under the power to regulate commerce among 
the States, Congress has authority to pass laws, the operation of 
which would be inconsistent with the tax imposed by the State 
of Nevada, but we know of no such statute now in existence. 
Inasmuch, therefore, as the tax does not itself institute any regu- 
lation of commerce of a national character, or which has a uniform 
operation over the whole country, it is not easy to maintain, in 
view of the principles on which those cases are decided, that it 
violates the clause of the Federal Constitution which we have had 
under review. 

But we do not concede that the question before us is to be de- 
termined by the two clauses of the Constitution which we have 
been examining. 

The people of these United States constitute one nation. They 
have a government in which all of them are deeply interested. 
This government has necessarily a capital established by law, where 
its principal operations are conducted. Here sits its legislature, 
composed of senators and representatives, from the States and 
from the people of the States. Here resides the President, direct- 
ing, through thousands of agents, the execution of the laws over 
all this vast country. Here is the seat of the supreme judicial 
power of the nation, to which all its citizens have a right to resort 
to claim Justice at its hands. Here are the great executive de- 
partments, administering the offices of the mails, of the public 
lands, of the collection and distribution of the public revenues, 
and of our foreign relations. These are all established and con- 
ducted under the admitted powers of the Federal government. 
That government has a right to call to this point any or all of its 
citizens to aid in its service, as members of the Congress, of the 
courts, of the executive departments, and to fill all its other 
offices; and this right cannot be made to depend upon the pleas- 
ure of a State over whose territory they must pass to reach the 
point Avhere these services must be rendered. The government 
also, has its offices of secondary importance in all other parts of the 
country. On the sea-coasts and on the rivers it has its ports of 
entry. In the interior it has its land offices, its revenue offices, 
and its sub-treasuries. In all these it demands the services of its 
citizens, and is entitled to bring them to those points from all 
quarters of the nation, and no power can exist in a State to obstruct 



64: CASES ON CONSTITUTIONAL LAW. 

this right that would not enable it to defeat the purposes for which 
the government was established. 

The Federal power has a right to declare and prosecute wars, 
and, as a necessary incident, to raise and transport troops through 
and over the territory of any State of the Union. 

If this right is dependent in any sense, however limited, upon 
the pleasure of a State, the government itself may be overthrown 
by an obstruction to its exercise. Much the largest part of the 
transportation of troops during the late rebelHon was by railroads, 
and largely through States whose people were hostile to the Union. 
If the tax levied by Nevada on railroad passengers had been the 
law of Tennessee, enlarged to meet the wishes of her people, the 
treasury of the United States could not have paid the tax nec- 
essary to enable its armies to pass through her territory. 

But if the government has these rights on her own account, the 
citizen also has correlative rights. He has the right to come to 
the seat of government to assert any claim he may have upon that 
government, or to transact any business he may have with it. To 
seek its protection, to share its offices, to engage in administering 
its functions. He has a right to free access to its sea-ports, through 
which all the operations of foreign trade and commerce are con- 
ducted, to the sub-treasuries, the land offices, the revenue offices, 
and the courts of justice in the several States, and this right is 
in its nature independent of the will of any State over whose soil 
he must pass in the exercise of it. 

The views liere advanced are neither novel nor unsupported 
by authority. The question of the taxing power of the States, as 
its exercise has affected the functions of the Federal government, 
has been repeatedly considered by this court, and the right of the 
States in this mode to impede or embarrass the constitutional op- 
erations of that government, or the rights which its citizens hold 
under it, has been uniformly denied. . . . [Here follows a 
discussion of McCulloeh v. Md., 4 Wheat.., 316; Brown v. Md., 
12 AA^ieat., 419; Weston v. Charleston, 2 Pet., 449.] 

In all these cases, the opponents of the taxes levied by the States 
were able to place their opposition on no express provision of the 
Constitution, except in that of Brown v. Maryland. But in all the 
other cases, and in that case also, the court distinctly placed the 
invalidity of the State taxes on the ground that they interfered 
with an authority of the Federal government, which was itself 
only to be sustained as necessary and proper to the exercise of some 
other power expressly granted. 

In The Passenger Cases, to which reference has already been 



CRANDALL v. STATE OF NEVADA. 55 

made, Justice Grier, with whom Justice Catron concurred, makes 
this one of the four propositions on which they held the tax void 
in those cases. Judge Wayne expresses his dissent to Judge Grier's 
views; and perhaps this ground received the concurrence of more 
of the members of the court who constituted the majority than 
any other. But the principles here laid down may be found more 
clearly stated in the dissenting opinion of the Chief Justice in those 
cases, and with more direct pertinency to the case now before 
us than anywhere else. After expressing his views fully in favor 
of the validity of the tax, which he said had exclusive reference 
to foreigners, so far as those cases were concerned, he proceeds 
to say, for the j^urpose of preventing misapprehension, that so far 
as the tax affected American citizens it could not in his opinion 
be maintained. He then adds: "Living as we do under a common 
government, charged with the great concerns of the whole Union, 
every citizen of the United States from the most remote States 
or territories, is entitled to free access, not only to the principal 
departments established at Washington, but also to its Judicial 
tribunals, and public offices in every State in the Union. . , . 
For all the great purposes for which the Federal government was 
formed we are one people, with one common country. We are all 
citizens of the United States, and as members of the same com- 
munity must have tlie right to pass and repass through every part 
of it without interru])tion, as freely as in our own States. And a 
tax imposed by a State, for entering its territories or harbors, is 
inconsistent with the rights which belong to citizens of other 
States as members of the Union, and with the objects which that 
Union was intended to attain. Such a power in the States could 
produce nothing but discord and mutual irritation, and they very 
clearly do not possess it." 

Although these remarks are found in a dissenting opinion, they 
do not relate to the matter on which the dissent was founded. 
They accord with the inferences which we have already drawn from 
the Constitution itself, and from the decisions of this court in 
exposition of that instrument. 

Those principles, as we have already stated them in this opinion, 
must govern the present case. . . . 

Judgment reversed, and the case remanded to the Supreme Court 
of the State of Nevada, with directions to discharge the plaintiff 
in error from custody. 



56 CASES ON CONSTITUTIONAL LAW. 

yEAZIE BANK v. FENNO. 
8 Wallace, 533. Decided 1869. 

On certificate of division for the Circuit Court for Maine. 

The Constitution ordains that: 

"The Congress shall have power — 

"To lay and collect taxes, duties, imposts, and excises, to pay 
the debts and provide for the common defense and general welfare 
of the United States; but all duties, imposts, and excises shall be 
uniform throughout the United States. 

"To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes. 

"To coin money, regulate the value thereof, and of foreign 
coin." 

It also ordains that: 

"Direct taxes shall be apportioned among the several States 
. . . according to their respective numbers." 

"No capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration hereinbefore directed to be 
made." 

"The powers not delegated to the United States by the Consti- 
tution nor prohibited by it to the States, are reserved to the States 
respectively, or to the people." 

With these provisions in force as fundamental law, Congress 
passed, July 13th, 1866,^ an act, the second clause of the 9th 
section of which enacts: 

"That every Xational banking association, State bank, or State 
banking association, shall pay a tax of ten per centum on the 
amount of notes of any person. State bank, or State banking asso- 
ciation, used for circulation and paid out by them after the 1st day 
of August, 1866, and such tax shall be assessed and paid in such 
manner as shall be prescribed by the commissioner of internal 
revenue." 

Under this act a tax of ten per cent, was assessed upon the 
A-^eazie Bank, for its bank notes issued for circulation, after the 
day named in the act. 

The Veazie Bank was a corporation chartered by the State of 
Maine, with authority to issue bank notes for circulation, and 
the notes on which the tax imposed by the act was collected, were 
issued under this authority. There was nothing in the case show- 

1 14 Stat, at Large, 146. 



VBAZIE BANK V. FENNO. 57 

ing that the bank sustained any relation to the State as a financial 
agent, or that its authority to issue notes was conferred or exer- 
cised with any special reference to other than private interests. 

The bank declined to pay the tax, alleging it to be unconstitu- 
tional, and the collector of internal revenue, one Fenno, was pro- 
ceeding to make a distraint in order to collect it, with penalty 
and costs, when, in order to prevent this, the bank paid it under 
protest. An unsuccessful claim having been made on the com- 
missioner of internal revenue for reimbursement, suit was brought 
by the bank against the collector, in the court below. 

The case was presented to that court upon an agreed statement 
of facts, and, upon a prayer for instructions to the jury, the judges 
found themselves opposed in opinion on three questions, the first 
of which— the two others differing from it in form only, and not 
needing to be recited — was this: 

"Whether .the second clause of the 9th section of the act of 
Congress of the 13th of July, 1866, under which the tax in this 
case was levied and collected, is a valid and constitutional law." 

The Chief Justice delivered the opinion of the court. 
• The necessity of adequate provision for the financial exigencies 
created by the late rebellion, suggested to the administrative and 
legislative departments of the government important changes in 
the systems of currency and taxation which had hitherto prevailed. 
These changes, more or less distinctly shown in administrative 
recommendations, took form and substance in legislative acts. We 
have now to consider, within a limited range, those which relate 
to circulating notes and the taxation of circulation. 

At the beginning of the rebellion the circulating medium con- 
sisted almost entirely of bank notes issued by numerous independ- 
ent corporations variously organized under State legislation, of 
various degrees of credit, and very unequal resources, administered 
often with great, and not unfrequently, with little skill, prudence, 
and integrity. The acts of Congress, then in force, prohibiting 
the receipt or disbursement, in the transactions of the National 
government, of anything except gold and silver, and the laws of 
the States requiring the redemption of bank notes in coin on 
demand, prevented the disappearance of gold and silver from cir- 
culation. There was, then, no national currency except coin; 
there was no general- regulation of any other by National legisla- 

2 See the act of December 27th, the District of Columbia, 10 Stat. 
1854, to suppress small notes in at Large, 599. 



58 CASES ON CONSTITUTIONAL LAW. 

tion; and no national taxation was imposed in any form on the 
State bank circulation. 

The first act anthorizing the emission of notes by the Treasury 
Department for circulation was that of July 17th, 1861.^ The 
notes issued under this act were treasury notes, payable on demand 
in coin. The amount authorized by it was $50,000,000, and was 
increased by the act of February 12th, 1862=^ to $60,000,000. 

On the 31st of December, 1861, the State banks suspended specie 
payment. Until this time the expenses of the war had been paid 
in coin, or in the demand notes just referred to; and for some 
time afterwards, they continued to be paid in these notes, which, 
if not redeemed in coin, were received as coin in the payment of 
duties. 

Subsequently, on the 2oth day of February, 1862,* a new policy 
became necessary in consequence of the suspension and of the 
condition of the country, and was adopted. The notes hitherto 
issued, as has just been stated, were called treasury notes, and 
were payable on demand in coin. The act now passed authorized 
the issue of bills for circulation under the name of United States 
notes, made payable to bearer, but not expressed to be payable on 
demand, to the amount of $150,000,000; and this amount was in- 
creased by subsequent acts to $450,000,000, of which $50,000,000 
were to be held in reserve, and only to be issued for a special pur- 
pose, and under special directions as to the withdrawal from circu- 
lation.^ These notes, until after the close of the war, were always 
convertible into, or receivable at par for bonds payable in coin, 
and bearing coin interest, at a rate not less than five per cent, and 
the acts by which they were authorized, declared them to be law- 
ful money and a legal tender. 

This currenc}^, issued directly by the government for the dis- 
bursement of the war and other expenditures, could not, obviously, 
be a proper object of taxation. 

But on the 25th of February, 1863, the act authorizing ISTa- 
tional banking associations® was passed, in which, for the first 
time during many years. Congress recognized the expediency and 
duty of imposing a tax upon currency. By this act a tax of two 
per cent annually was imposed on the circulation of the associa- 
tions authorized by it. Soon after, by the act of March 3d, 1863,' 
a similar but lighter tax of one per cent annually was imposed on 

2 12 Stat, at Large, 259. Act of March 3d, 1863, lb., 710. 

3 lb., 338. G Act of Marcb 3d, 1863, 12 lb., 

4 lb., 345. 670. 

5 Act of July 11th, 1862, lb., 532; 7 ib., 712. 



VEAZIE BANK v. FENNO. 59 

the circulation of State banks in certain proportions to their cap- 
ital, and of two per cent, on the excess; and the tax on the Na- 
tional associations was reduced to the same rates. 

Both acts also imposed taxes on capital and deposits, which 
need not be noticed here. 

At a later date, by the act of June 3d, 1 8G4,^ which was substi- 
tuted for the act of February 35th, 18G3, authorizing National 
banking associations, the rate of tax on circulation was continued 
and applied to the whole amount of it, and the shares of their 
stockholders were also subjected to taxation by the States; and 
a few days afterwards, by the act of June 30tli, 186-i,^ to provide 
ways and means for the support of the government, the tax on the 
circulation of the State banks was also continued at the same 
annual rate of one per cent., as before, but payment was required 
in monthly installments of one-twelfth of one per cent., with 
monthly reports from each State bank of the amount in circulation. 

It can hardly be doubted that the object of this provision was to 
inform the proiser authorities of the exact, amount of paper money 
in circulation, with a view to its regulation by law. 

The first step taken by Congress in that direction was by the act 
of July 17, 1862,^° prohibiting the issue and circulation of notes 
under one dollar by any person or corporation. The act just re- 
ferred to was the next, and it was followed some months later by 
the act of March 3d, 1865, amendatory of the prior internal rev- 
enue acts, the sixth section of which provides, "that every National 
banking association. State bank, or State banking association, shall 
pay a tax of ten per centum on the amount of the notes of any 
State bank, or State banking association, paid out by them after 
the 1st day of July, 1866." 

The same provision was re-enacted, with a more extended appli- 
cation, on the 13th of July, 1866, in these words: "Every Na- 
tional banking association. State bank, or State banking associa- 
tion, shall pay a tax of ten per centum on the amount of notes of 
any person, State bank, or State banking association used for cir- 
culation, and paid out by them after the first day of August, 1866; 
and such tax shall be assessed and paid in such manner as shall be 
prescribed by the Commissioner of Internal Eevenue."^^ 

The constitutionality of this last provision is now drawn in ques- 
tion, and this brief statement of the recent legislation of Congress 

8 13 lb., 111. 11 13 lb., 484. 

» lb., 277. 12 14 lb., 146. 

10 Act of March 3d, 1863, 12 lb., 
592. 



60 CASES ON CONSTITUTIONAL LAW. 

lias been made for the purpose of placing in a clear light its scope 
and bearings especially as developed in the provisions jnst cited. 
It will be seen that when the policy of taxing bank circulation 
was first adopted in 1863, Congress was inclined to discriminate 
for, rather than against, the circulation of the State banks; but 
that when the country had been sufficiently furnished with a ISTa- 
tional currency by the issues of United States notes and of Xational 
bank notes, the discrimination was turned, and very decidedly 
turned, in the opposite direction. 

The general question now before us is, whether or not the tax of 
ten per cent., imposed on State banks or Xational banks paying 
out the notes of individuals or State banks used for circulation, is 
repugnant to the Constitution of the United States. 

In support of the position that the act of Congress, so far as it 
provides for the levy and collection of this tax, is repugnant to the 
Constitution, two propositions have been argued with much force 
and earnestness. 

The first is that the tax in question is a direct tax, and has not 
been apportioned among the States agreeably to the Constitution. 

The second is that the act imposing the tax impairs a franchise 
granted by the State, and that Congress has no power to pass any 
-law with that intent or effect. 

The first of these propositions will be first examined. . . . 

Much diversity of opinion has always prevailed upon the ques- 
tion, what are direct taxes? Attempts to answer it by reference to 
the definitions of political economists have been frequently made, 
but without satisfactory results. The enumeration of the different 
kinds of taxes which Congress was authorized to impose was proba- 
bly made with little reference to their speculations. . . . We 
are obliged therefore to resort to historical evidence, and to seek 
the meaning of the words in the use and in the opinion of those 
whose relations to the government, and means of knowledge, war- 
ranted them in speaking with authority. And considered in this 
light, the meaning and application of the rule, as to direct taxes, 
appears to us quite clear. It is, as we think, distinctly shown in 
every act of Congress on the subject. 

In each of these acts, a gross sum was laid upon the United 
States, and the total amount was apportioned to the several States, 
according to their respective numbers of inhabitants, as ascertained 
by the last preceding census. Having been apportioned, pro- 
vision was made for the imposition of the tax upon the subjects 
specified in the act, fixing its total sum. ... In each instance, 
the total sum was apportioned among the States, by the constitu- 



VEAZIE BANK v. FENNO. 61 

tional rule, and was assessed at prescribed rates, on the subjects of 
the tax. These subjects, in 1798,^ 1813,2 1815,^ 1816,^ were lands, 
improvements, dwelling-houses, and slaves; and in 1861, lands, 
improvements, and dwelling-houses only. Under the act of 1798, 
slaves were assessed at fifty cents on each; under the other acts, 
according to valuation by assessors. This review shows that per- 
sonal property, contracts, occupations, and the like, have never 
been regarded by Congress as proper subjects of direct tax. . . . 

[After a discussion of Hylton v, U. S., the court continues:] 

It may be safely assumed, therefore, as the unanimous judgment 
of the court, that a tax on carriages is not a direct tax. And it 
may further be taken as established upon the testimony of Pater- 
son, that the words direct taxes, as used in the Constitution, com- 
prehended only capitation taxes, and taxes on land, and perhaps 
taxes on personal property by general valuation and assessment of 
the various descriptions possessed within the several States. 

It follows necessarily that the power to tax without apportion- 
ment extends to all other objects. Taxes on other objects are in- 
cluded under the heads of taxes not direct, duties, imposts, and 
excises, and must be laid and collected by the rule of uniformity. 
The tax under consideration is a tax on bank circulation, and may 
very well be classed under the head of duties. Certainly it is not, 
in the sense of the Constitution, a direct tax. It may be said to 
come within the same category of taxation as the tax on incomes 
of insurance companies, which this court, at the last term, in the 
case of Pacific Insurance Company v. Soule,'^ held not to be a 
direct tax. 

Is it, then, a tax on a franchise granted by a State, which Con- 
gress, upon any princij^le exempting the reserved powers of the 
States from impairment by taxation, must be held to have no 
authority to lay and collect? We do not say that there may not 
be such a tax. It may be admitted that the reserved rights of 
the States, such as the right to pass laws, to give effect to laws 
through executive action, to administer justice through the 
courts, and to employ all necessary agencies for legitimate pur- 
poses of State government, are not proper subjects of the taxing 
power of Congress. But it cannot be admitted that franchises 
granted by a State are necessarily exempt from taxation; for 
franchises are property, often very valuable and productive prop- 

1 Act of July 9th, 1798, 1 Stat, at s Id., 166. 

Large, 586. 4 id., 255. 

2 Act of July 22d, 1813, 3 lb., 26. s 7 Wallace, 434. 



62 CASES ON CONSTITUTIONAL LAW. 

erty; and when not conferred for the purpose of giving effect to 
some reserved power of a State, seem to be as properly objects of 
taxation as any other property. 

But in the case before us the object of taxation is not the fran- 
chise of the bank, but property created, or contracts made and 
issued under the franchise, or power to issue bank bills. A railroad 
company, in the exercise of its corporate franchises, issues freight 
receipts, bills of lading, and passenger tickets; and it cannot be 
doubted that the organization of railroads is quite as important to 
the State as the organization of banks. But it will hardly be CLues- 
tioned that these contracts of the company are objects of taxation 
within the powers of Congress, and not exempted by any relation 
to the State which granted the charter of the railroad. And it 
seems difficult to distinguish the taxation of notes issued for cir- 
culation from the taxation of these railroad contracts. Both de- 
scriptions of contracts are means of profit to the corporations 
which issue them; and both, as we think, may properly be made 
contributory to the public revenue. 

It is insisted, however, that the tax in the case before us is ex- 
cessive, and so excessive as to indicate a purpose on the part of 
Congress to destroy the franchise of the bank, and is, therefore, 
beyond the constitutional power of Congress. 

The first answer to this is that the judicial cannot prescribe to 
the legislative department of the government limitations upon 
the exercise of its acknowledged powers. The power to tax may 
be exercised oj)pressively upon persons, but the responsibility of 
the legislature is not to the courts, but to the people by whom its 
members are elected. So if a particular tax bears heavily upon a 
corporation, or a class of corporations, it cannot, for that reason 
only, be pronounced contrary to the Constitution. 

But there is another answer which vindicates equally the wisdom 
and the power of Congress. 

It cannot be doubted that under the Constitution the power to 
provide a circulation of coin is given to Congress. And it is set- 
tled by the uniform practice of the government and by repeated 
decisions, that Congress may constitutionally authorize the emis- 
sion of bills of credit. It is not important here, to decide whether 
the quality of legal tender, in payment of debts, can be constitu- 
tionally imparted to these bills; it is enough to say, that there can 
be no question of the power of the government to emit them; to 
make them receivable in payment of debts to itself; to fit them for 
use by those who see fit to use them in all the transactions of com- 
merce; to proA^de for their redemption; to make them a currency. 



yEAZIE BANK v. FENNO. 63 

■aniform in value and description, and convenient and useful tor 
circulation. These powers, until recently, were only partially and 
occasionally exercised. Lately, however, they have been called 
into full activity, and Congress has undertaken to supply a cur- 
rency for the entire country. 

The methods adopted for the supply of this currency were briefly 
explained in the first part of this opinion. It now consists of coin, 
of United States notes, and of the notes of the National banks. 
Both descriptions of notes may be properly described as bills of 
credit, for both are furnished by the government; both are issued 
on the credit of the government; and the government is responsi- 
ble for the redemption of both; primarily as to the first descrip- 
tion, and immediately upon default of the bank, as to the second. 
When these bills shall be made convertible intO' coin, at the will 
of the holder, this currency will, perhaps, satisfy the wants of the 
community, in respect to a circulating medium, as perfectly as 
any mixed currency that can be devised. 

Having thus, in the exercise of undisputed constitutional powers, 
undertaken to provide a currency for the whole country, it cannot 
be questioned that Congress may, constitutionally, secure the ben- 
efit of it to the people by appropriate legislation. To this end. Con- 
gress has denied the quality of legal tender to foreign coins, and 
has i^rovided by law against the imposition of counterfeit and base 
coin on the community. To the same end. Congress may restrain, 
by suitable enactments, the circulation as money of any notes not 
issued under its own authority. Without this power, indeed, its 
attempts to secure a sound and uniform currency for the country 
must be futile. 

Viewed in this light, as well as in the other light of a duty on 
contracts or property, we cannot doubt the constitutionality of 
the tax under consideration. The three questions certified from 
the Circuit Court of the District of Maine must, therefore, be an- 
swered Affirmatively. 

[Mr Justice Nelson rendered a dissenting opinion, in which 
Justice Davis concurred.] 



64 CASES ON CONSTITUTIONAL LAW. 

THE COLLECTOE v. DAY. 

11 Wallace, 113. Decided 1870. 
Eeeoe to the Circuit Conn for the District of Massachusetts. 

[The case grew out of an attempt of a collector of the internal 
revenue of the United States to collect a tax on the salary of a 
judge of the State of Massachusetts levied in accordance with 
certain acts of Congress passed in 1864, '65, '66, and '"6?.] 

Me. JrsTiCE Xelsox delivered the opinion of the court. 

The case presents the question whether or not it is competent 
for Congress, under the Constitution of the United States, to im- 
pose a tax upon the salary of a judicial officer of a State? 

In Dobbins v. The Commissioners of Eri€ County,^ it was de- 
cided that it was not competent for the legislature of a State to 
levy a tax upon the salary or emoluments of an officer of the 
United States. The decision was placed mainly upon the ground 
that the officer was a means or instrumentality employed for carry- 
ing into effect some of the legitimate powers of the government, 
which could not be interfered with by taxation or otherwise by the 
States, and that the salary or compensation for the service of the 
officer was inseparably connected with the office; that if the officer, 
as such was exempt, the salary assigned for his support or main- 
tenance while holding the office was also, for like reasons, equally 
exempt. 

The cases of McCullocli v. Maryland,- and TTeston v. Charles- 
ton,^ were referred to as settling the principle that governed the 
case, namely, "that the State governments cannot lay a tax upon 
the constitutional means employed by the government of the Union 
to execute its constitutional powers." . . . [Here follow cita- 
tions from these cases.] 

It is conceded in the case of McCulloch v. Maryland, that the 
power of taxation by the States was not abridged by the grant of a 
similar power to the government of the Union; that it was re- 
tained by the States, and that the power is to be concurrently 
exercised by the two governments; and also that there is no ex- 
press constitutional prohibition upon the States against taxing the 
means or instrumentalities of the general government. But it was 

1 16 Peters, 435. 3 2 Peters, 449. 

2 4 Wheaton, 316. 



THE COLLECTOR v. DAY. 65 

held, and we agree properly held, to be prohibited by necessary 
implication; otherwise, the States might impose taxation to an 
extent that would impair, if not wholly defeat, the operations of 
the Federal authorities when acting in their appropriate sphere. 

These views, we think, abundantly establish the soundness of 
the decision of the case of Dobbins v. The Commissioners of Erie, 
which determined that the States were prohibited, upon a proper 
construction of the Constitution, from taxing the salary or emolu- 
ments of an officer of the government of the United States. And 
we shall now proceed to show that, upon the same construction of 
that instrument, and for like reasons, that government is prohib- 
ited from taxing the salary of the judicial officer of a State. 

It is a familiar rule of construction of the Constitution of the 
Union, that the sovereign powers vested in the State governments 
by their respective constitutions remained unaltered and unim- 
paired, except so far as they were granted to the government of the 
United States. That the intention of the framers of the Consti- 
tution in this respect might not be misunderstood, this rule of 
interpretation is expressly declared in the Tenth Article of the 
amendments, namely: "The powers not delegated to the United 
States are reserved to the States respectively, or, to the people." 
The government of the United States, therefore, can claim no 
powers which are not granted to it by the Constitution, and the 
powers actually granted must be such as are expressly given, or 
given by necessary implication. 

The general government, and the States, although both exist 
within the same territorial limits, are separate and distinct sover- 
eignties, acting separately and independently of each other, within 
their respective spheres. The former in its appropriate sphere is 
supreme; but the States within the limits of their powers not 
granted, or, in the language of the Tenth Amendment, "reserved," 
are as independent of the general government as that government 
within its sphere is independent of the States. 

The relations existing between the two governments are well 
stated by the present Chief Justice in the case of Lane County v. 
Oregon, 7 Wallace, 76. "Both the States and the United States," 
he observed, "existed before the Constitution. The people, 
through that instrument, established a more perfect union, by 
substituting a national government, acting with ample powers di- 
rectly upon the citizens, instead of the Confederate government, 
which acted with powers greatly restricted, only upon the States. 
But, in many of the articles of the Constitution, the necessary 
existence of the States, and within their proper spheres, the inde- 
5 



66 CASES ON CONSTITUTIONAL LAW. 

pendent antliority of the States^, are distinctly recognized. To 
them nearly the whole charge of interior regulation is committed 
or left; to them, and to the people, all powers, not expressly dele- 
gated to the national government, are reserved.^' Upon looking 
into the Constitution, it will be found that but few of the articles 
in that instrumeut could be carried into practical effect without 
the existence of the States. 

Two of the great departments of the government, the executive 
and legislative, depend upon the exercise of the powers, or upon 
the people of the States. The Constitution guarantees to the 
States a republican form of government, and protects each against 
invasion or domestic violence. Such being the separate and inde- 
pendent condition of the States in our complex system, as recog- 
nized by the Constitution, and the existence of which is so indis- 
pensable, that, without them, the general government itself would 
disappear from the family of nations, it would seem to follow, as 
a reasonable, if not a necessary consequence, that the means and 
instrumentalities employed for carrying on the operations of their 
governments, for preserving their existence, and fulfilling the high 
and responsible duties assigned to them in the Constitution, should 
be left free and unimpaired, should not be liable to be crippled, 
much less defeated, by the taxing power of another government, 
which power acknowledges no limits but the will of the legislative 
body imposing the tax. And, more especially, those means and 
instrumentalities which are the creation of their sovereign and re- 
served rights, one of which is the establishment of the judicial 
department, and the appointment of officers to administer their 
laws. Without this power, and the exercise of it, vfe risk nothing 
in saying that no one of the States under the form of government 
guaranteed by the Constitution could long preserve its existence. 
A des]ootic government might. We have said that one of the 
reserved powers was that to establish a judicial department: it 
would have been more accurate, and in accordance with the exist- 
ing state of things at the time, to have said the power to maintain 
a judicial department. All of the thirteen States were in the pos- 
session of this power, and had exercised it at the adoption of the 
Constitution; and it is not pretended that any grant of it to the 
general government is found in that instrument. It is, therefore, 
one of the sovereign powers vested in the States by their constitu- 
tions, which remained unaltered and unimpaired, and in respect 
to which the State is as independent of the general government 
as that government is independent of the States. 

The supremacy of the general government, therefore, so much 



THE COLLECTOR v. DAY. 67 

relied on in the argument of the counsel for the plaintiff in error, 
in respect to the question before us, cannot be maintained. The 
two governments are upon an equality, and the question is whether 
the power "to lay and collect taxes" enables the general govern- 
ment to tax the salary of a judicial officer of the State, which 
officer is a means or instrumentality employed to carry into exe- 
cution one of its most important functions, the administration of 
the laws, and which concerns the exercise of a right reserved to the 
States? 

We do not say the mere circumstance of the establishment of 
the judicial department, and the appointment of officers to admin- 
ister the laws, being among the reserved powers of the State, dis- 
ables the general government from levying the tax, as that de- 
pends upon the express power "to lay and collect taxes," but it 
shows that it is an original inherent power never parted with, and, 
in respect to which, the supremacy of that government does not 
exist, and is of no importance in determining the question; and 
further, that ])eing an original and reserved power, and the judicial 
officers appointed under it being a means or instrumentality 
employed to carry it into effect, the right and necessity of its unim- 
paired exercise, and the exemption of the officer from taxation by 
the general government stand upon as solid a ground, and are 
maintained by principles and reasons as cogent, as those which led 
to the exemption of the Federal officer in Dobbins v. The Com- 
misisoners of Erie from taxation by the State; for, in this respect, 
that is, in respect to the reserved powers, the State is as sovereign 
and independent as the general government. And if the means 
and instrumentalities employed by that government to carry into 
operation the powers granted to it are, necessarily, and, for the 
sake of self-preservation, exempt from taxation by the States, why 
are not those of the States depending upon their reserved powers, 
for like reasons, equally exempt from Federal taxation? Their 
unimpaired existence in the one case is as essential as in the other. 
It is admitted that there is no express provision in the Constitu- 
tion that prohibits the general government from taxing the means 
and instrumentalities of the States, nor is there any prohibiting 
the States from taxing the means and instrumentalities of that 
government. In both cases 'the exemption rests upon necessary 
implication, and is upheld by the great law of self-preservation; 
as any government, whose means employed in conducting its 
operations, if subject to the control of another and distinct gov- 
ernment can exist only at the mercy of that government. Of what 
avail are these means if another power may tax them at discretion ? 



68 CASES ON CONSTITUTIONAL LAW. 

But we are referred to the Yeazie Bank v. Fenno, 8 "Wallace, 533, 
in support of this power of taxation. That case furnishes a strong 
illustration of the position taken by the Chief Justice in McCulloch 
V. Maryland, namely, "That the power to tax inrolves the power 
to destroy." 

The power involved was one which had been exercised by the 
States since the foundation of the government, and had been, after 
the lapse of three-quarters of a century, annihilated from excessive 
taxation by the general government, Just as the judicial oflB.ce in 
the present case might be, if subject at all to taxation by that gov- 
ernment. But, notwithstanding the sanction of this taxation by 
a majority of the court, it is conceded, in the opinion, that "the 
reserved rights of the States, such as the right to pass laws; to 
give effect to laws through executive action; to administer justice 
through the courts, and to employ all necessary agencies for legiti- 
mate purposes of State government, are not proper subjects of the 
taxing power of Congress." This concession covers the case be- 
fore us, and adds the authority of this court in support of the doc- 
trine which we have endeavored to maintain. 

Judgment affirmed. 

Me. Justice Bradley, dissenting. 

I dissent from the opinion of the court in this case, because it 
seems to me that the general government has the same power of 
taxing the income of oflficers of the State governments as it has 
of taxing that of its own officers. It is the common government of 
all alike; and every citizen is presumed to trust his own govern- 
ment in the matfter of taxation. No man ceases to be a citizen of 
the United States by being an ofl&cer under the State government. 
I cannot accede to the doctrine that the general government is to 
be regarded as in any sense foreign or antagonistic to the State 
governments, their ofl&cers, or j^eople; nor can I agree that a pre- 
sumption can be admitted that the general government will act 
in a manner hostile to the existence or functions of the State gov- 
ernments, which are constituent parts of the system or body politic 
forming the basis on which the general government is founded. 
The taxation by the State governments of the instruments em- 
ployed by the general government in the exercise of its powers, is 
a very different thing. Such taxation involves an interference 
with the powers of a government in which other States and their 
citizens are equally interested ^nth the State which imposes the 
taxation. In my judgment, the limitation of the power of taxation 
in the general government, which the present decision establishes, 
■will be found very difficult to control. Wliere are we to stop in 



STATE TONNAGE TAX CASES G9 

enumerating the functions of the State governments which will be 
interfered with by Federal taxation? If a State incorporate a 
railroad to carry out its purposes of internal improvement, or a 
bank to aid its financial arrangements, reserving, perhaps, a per- 
centage on the stock or profits, for the supply of its own treasury, 
will the bonds or stock of such an institution be free from Federal 
taxation? How can we now tell what the effect of this decision 
will be? I cannot but regard it as founded on a fallacy, and that 
it will lead to mischievous consequences. I am as much opposed 
as any one can be to any interference by the general government 
with the just powers of the State governments. But no concession 
of any of the just powers of the general government can easily be 
recalled. I, therefore, consider it my duty to at least record my 
dissent when such concession appears to be made. An extended 
discussion of the subject would answer no useful purpose. 



STATE TONNAGE TAX CASES. 
12 Wallace, 204. Decided 1870. 

Eeror to the Supreme Court of Alabama. 

These were two cases, which, though coming in different forms, 
involved one and the same point only; and at the bar — where the 
counsel directed attention to the principle involved, separated 
from the accidents of the case — were discussed together as pre- 
senting "precisely the same question." The matter was thus: — 

The Constitution ordains that "no State shall without the con- 
sent of Congress lay any duty of tonnage." With this provision in 
force as superior law, the State of Alabama passed, on the 23d of 
February, 1866, a revenue law. By this law, the rate of taxation 
for property generally was the one-half of one per cent; but "on 
all steamboats, vessels, and other water crafts plying in the naviga- 
ble waters of the State," the act levied a tax at "the rate of $1 per 
ton of the registered tonnage thereof," which it declared should 
"be assessed and collected at the port where such vessels are regis- 
tered, if practicable; otherwise at any other port or landing within 
the State where such vessel may be." 

The tax collector was directed by the act to demand, in each year, 
of the person in charge of the vessel, if the taxes had been paid. 
If a receipt for the same was not produced, he was to immediately 



?0 CASES ON CONSTITUTIONAL LAW. 

assess the same according to tonnage, and if such, tax was not paid 
on demand lie was to seize the boat, &c., and, after notice, proceed 
and sell the same for pajTuent of the tax, &c., and pay the surplus 
into the county treasury for the use of the owner. If the vessel 
could not be seized, the collector was to make the amount of the 
tax out of the real and personal estate of the owner, &c. 

Under this act, one Lott, tax collector of the State of Alabama, 
demanded of Cox, the owner of the Dorrance, a steamer of 321 
tons, and valued at $5,000, and of several other steamers, certain 
sums as taxes; and under an act of 1867, identical in language with 
the one of 1866, just quoted, demanded from the Trade Company 
of Mobile certain sums on like vessels owned by them; the tax in 
all the cases being proportioned to the registered tonnage of the 
vessel. 

The steamboats, the subject of the tax, were owned exclusively 
by citizens of the State of Alabama, and were engaged in the 
navigation of the Alabama, Bigbee, and Mobile rivers, carrying 
freight and passengers between Mobile and other points of said 
rivers, altogether within the limits of that State. These waters 
were navigable from! the sea for vessels of "ten or more tons' bur- 
den;" and it was r/ot denied that -there were ports of deliver}^ on 
them above the highest points to which these boats plied. The 
owners of the boats were not assessed for any other tax on them 
than the one here claimed. The boats were enrolled and licensed 
for the coasting trade. Though running, therefore, between points 
altogether within the limits of the State of Alabama, the boats 
were, as it seemed,^ of that sort on which Congress lays a tonnage 
duty. 

Cox, under compulsion and protest, |)aid the tax demanded of 
him, and then brought assumpsit in one of the inferior State courts 
of Alabama, to get back the money. The Trade Company refused 
to pay, and filed a bill in a like court, to enjoin the collector from 
proceeding to collect. The ground of resistance to the tax in each 
case was this, that being laid in proportion to the tonnage of the 
vessel, the tax was laid in a form and manner which the State was 
prohibited by the already quoted section of the Constitution from 
adopting. The right of the State to lay a tax on vessels according 
to their value and as property was not denied, but on the contrary 
conceded." Judgment being given in each case against the validity 

1 See Act of July 18th, 1866, § 28; fense to the tax was taken, in the 
14 Stat, at Large, 185. fact that by the act of Congress 

2 It is barely necessary to note admitting Alabama into the Un- 
that an additional ground of de- ion, it is declared, "that all navi- 



STATE TONNAGE TAX CASES. 71 

of the tax, the matter was taken to the Supreme Court of Ala- 
bama, which decided that it was lawfuL To review that judgment 
the case was now here. . . . 

Me. Justice Clifford delivered the judgment of the court, 
giving an opinion in each of the cases, 

I. In the fiest case. — . . . Congress has prescribed the 
rules of admeasurement and computation for estimating the ton- 
nage of American ships and vessels.^ 

Viewed in the light of those enactments, the word tonnage, as 
applied to American ships and vessels, must be held to mean their 
entire internal cubical capacity, or contents of the ship or vessel 
expressed in tons of one hundred cubical feet each, as estimated 
and ascertained by those rules of admeasurement and of com- / 
putation.* / 

Power to tax, with certain exceptions, resides with the States, ^ 
independent of the Federal government, and the power, when con- 
fined within its true limits, may be exercised without restraint 
from any Federal authority. They cannot, however, without the 
consent of Congress, lay any duty of tonnage, nor can they levy 
any imposts or duties on imports or exports, except what may be 
absolutely necessary for executing their inspection laws, as with- 
out the consent of Congress they are unconditionally prohibited 
from exercising any such power. Outside of those prohibitions 
the power of the States to tax extends to all objects within the 
sovereign power of the States, except the means and instruments 
of the Federal government. But ships and vessels owned by indi- 
viduals and belonging to the commercial marine are regarded as 
the private property of their owners, and not as the instruments 
or means of the Federal government, and as such, when viewed as 
property, they are plainly within the taxing power of the States, 
as they are not withdrawn from the operation of that power by any 
express or implied prohibition contained in the Federal Consti- 
tution.^ ... 

gable waters within the said state ■! 13 stat. at Large, 492, 70; lb., 

shall forever remain public high- 444. 

ways, free to the citizens of said 4 Nathan v. Louisiana, 8 How- 
state, and of the United States, ard, 82; Howell v. Maryland, 3 
without any tax, duty, impost, or Gill, 14. 

toll therefor, imposed by the said 5 Alexander v. Railroad, 3 Strob- 

state." This ground not being hart, 598. 
passed upon by this court, need 
not be adverted to further. 



73 CASES ON CONSTITUTIONAL LAW. 

Taxes levied by a State upon ships and vessels owned by the citi- 
zens of the State as property, based on a valuation of the same as 
property, are not within the prohibition of the Constitution, but it 
is equally clear and undeniable that taxes levied by a State upon 
ships and vessels as instruments of commerce and navigation are 
within that clause of the instrument which prohibits the States 
from levying any duty of tonnage, without the consent of Congress; 
and it makes no difference whether the ships or vessels taxed 
belong to the citizens of the State which levies the tax or the citi- 
zens of another State, as the prohibition is general, withdrawing 
altogether from the States the power to lay any duty of tonnage 
under any circumstances, without the consent of Congress.^ 

Annual taxes upon property in ships and vessels are continually 
laid, and their validity was never doubted or called in question, 
but if the States, without the consent of Congress, tax ships or 
vessels as instruments of commerce, by a tonnage duty, or indi- 
rectly by imposing the tax upon the master or crew, they assume 
a jurisdiction which they do not possess, as every such act falls 
directly within the prohibition of the Constitution/ . . . 

Tonnage duties are as much taxes as duties on imports or exports, 
and the prohibition of the Constitution extends as fully to such 
duties if levied by the States as to duties on imports or exports, 
and for reasons quite as strong as those which induced the framers 
of the Constitution to withdraw imports and exports from State 
taxation. Measures, however, scarcely distinguishable from each 
other may flow from distinct grants of power, as, for examptle. 
Congress does not possess the power to regulate the purely internal 
commerce of the States, but Congress may enroll and license ships 
and vessels to sail from one port to another in the same State; and 
it is clear that such ships and vessels are deemed ships and vessels 
of the United States, and that as such they are entitled to the 
privileges of ships and vessels employed in the coasting trade.® 

Steamboats, as well as sailing ships and vessels, are required to 
be enrolled and licensed for the coasting trade, and the record 
shows that all the steamboats taxed in this case had conformed to 
all the regulations of Congress in that regard, that they were duly 
enrolled and licensed for the coasting trade and were engaged in 

6 Gibbons v. Ogden, 9 Wheaton, " Passenger Cases, 7 Howard,. 

202; Sennot v. Davenport, 22 How- 447, 481. 

ard, 238; Foster v. Davenport, lb., ? 1 Stat, at Large, 287; Id., 305; 

245; Perry v. Torrence, 8 Ohio, 3 Kent (11th ed.), 203. 
524. 



STATE TONNAGE TAX CASES. 73 

the transportation of passengers and freight within the limits of 
the State, upon waters navigable from the sea by vessels of ten or 
more tons burden. 

Tonnage duties, to a greater or less extent, have been imposed 
by Congress ever since the Federal government was organized 
under the Constitution to the present time. They have usually 
been exacted when the ship or vessel entered the port, and have 
been collected in a manner not substantially different from that 
prescribed in the act of the State legislature under consideration. 
Undisputed authority exists in Congress to impose such duties, 
and it is not pretended that any consent has ever been given by 
Congress to the State to exercise any such power. 

If the tax levied is a duty of tonnage, it is conceded that it is 
illegal, and it is difficult to see how the concession could be avoided, 
as the prohibition fs express, but the attempt is made to show that 
the legislature, in enacting the law imposing the tax, merely re- 
ferred to the registered tonnage of the steamboats "as a way or 
mode to determine and ascertain the tax to be assessed on the 
steamboats, and to furnish a rule or rate to govern the assessors 
in the performance of their duties." 

Suppose that could be admitted, it would not have much tend- 
ency to strengthen the argument for the defendant, as the sug- 
gestion concedes what is obvious from the schedule, that the taxes 
are levied without any regard to the value of the steamboats. But 
the proposition involved in the suggestion cannot be admitted, as, 
by the very terms of the act, the tax is levied on the steamboats 
wholly irrespective of the value of the vessels as property, and 
solely and exclusively on the basis of their cubical contents as 
ascertained by the rules of admeasurement and computation pre- 
scribed by the act of Congress. 

By the terms of the law the taxation prescribed is "at the rate of 
one dollar per ton of the registered tonnage thereof," and the nine- 
tieth section of the act provides that the tax collector must, each 
year, demand of the person in charge of the steamboat whether the 
taxes have been paid, and if the person in charge fails to produce 
a receipt therefor by a tax collector, authorized to collect such 
taxes, the collector having the list must at once proceed to assess 
the same, and if the tax is not paid on demand he must seize such 
steamboat, &c., and after twenty days' notice, as therein prescribed, 
shall sell the same, or so much thereof as will pay the taxes and 
expenses for keeping and costs. ** 

9 Sess. Acts, 1866, pp. 7, 31. 



7-i CASES ON CONSTITUTIONAL LAW. 

Legislative enactments, where tlie language is unambiguous, 
cannot be changed by construction, nor can the language be 
divested of its plain and obvious meaning. Taxes levied under 
an enactment which directs that a tax shall be imposed on steam- 
boats at the rate of one dollar per ton of the registered tonnage 
thereof, and that the same shall be assessed and collected at the 
port where such steamboats are registered, cannot, in the judg- 
ment of this court, be held to be a tax on the steamboat as prop- 
erty. On the contrary, the tax is just what the language imports, 
a duty of tonnage, which is made even plainer when it comes to be 
considered that the steamboats .are not to be taxed at all unless 
they are "plying in the" navigable waters of the State," showing to 
a demonstration that it is as instruments of commerce and not as 
property that they are required to contribute to the revenues of 
the State. 

Such provision is much more clearly within the prohibition in 
question than the one involved in a recent case decided by this 
court, in which it was held that a statute of a State enacting that 
the wardens of a port were entitled to demand and receive, in 
addition to other fees, the sum of five dollars for every vessel arriv- 
ing at the port, whether called on to perform any service or not, 
was both a regulation of commerce and a duty of tonnage, and 
that as such it was unconstitutional and void.^*^ 

Speaking of the same prohibition, the Chief Justice said in that 
case that those words in their most obvious and general sense de- 
scribe a duty proportioned to the tonnage of the vessel — a certain 
rate on each ton — which is exactly what is directed by the provision 
in the tax act before the court, but he added that it seems plain, 
if the Constitution be taken in that restricted sense, it would not 
fully accomplish the intent of the framers, as the prohibition upon 
the States against levying duties on imports or exports would be 
ineffectual if it did not also extend to duties on the ships which 
serve as the vehicles of conveyance, which was doubtless intended 
by the prohibition of any duty of tonnage. "It was not only a pro 
rata tax which was prohibited, but any duty on the ship, whether 
a fixed sum upon its whole tonnage, or a sum to be ascertained by 
comparing the amount of tonnage with the rate of duty." 

Assume the rule to be as there laid down, and all must agree 
that "the levy of the tax in question is expressly prohibited, as the 
schedule shows that it is exactly proportioned to the registered 
tonnage of the steamboats plying in the navigable waters of the 
State." . . . 

10 steamship Co. v. Port Wardens, 6 Wallace, 34. 



STATE TONNAGE TAX CASES. 75 

Taxes in aid of the inspection laws of a State, under special cir- 
cumstances, have been upheld as necessary to promote the inter- 
ests of commerce and the security of navigation. ^^ 

Laws of that character are upheld as contemplating benefits and 
advantages to commerce and navigation, and as altogether distinct 
from imposts and duties on imports and exports and duties of ton- 
nage. Usage, it is said, has sanctioned such laws where Congress 
has not legislated, but it is clear that such laws bear no relation to 
the act in question, as the act under consideration is emphatically 
an' act to raise revenue to replenish the treasury of the State and 
for no other purpose, and does not contemplate any beneficial 
service for the steamboats or other vessels subjected to taxation. 

Beyond question the act is an act to raise revenue without any 
corresponding or equivalent benefit or advantage to the vessels 
taxed or to the ship-owners, and consequently it cannot be upheld 
by virtue of the rules applied in the construction of laws regulating 
pilot dues and port charges.^- 

Attempt was made in the case of Alexander v. Eailroad to show 
that the form of levying the tax was simply a mode of assessing the 
vessels as property, but the argument did not prevail, nor can it 
in this case, as the amount of the tax is measured by the tonnage 
of the steamboats and not -by their value as property. 

Reference is made to the case of the Towboat Company v. 
Bordelon,^^ as asserting the opposite rule, but the court is of a 
different opinion, as the tax in that case was levied, not upon the 
boat, but upon the capital of the company owning the boat, and 
the court in delivering their opinion say the capital of the com- 
pany is property, and the Constitution of the State requires an 
equal and uniform tax to be imposed upon it with the other prop- 
erty of the State for the support of government. 

For these reasons the court is of opinion that the State law 
levying the taxes in this case is unconstitutional and void, that the 
judgment of the State Court is erroneous and that it must be 
reversed, and having come to that conclusion, the court does not 
find it necessary to determine the other question. 

Judgment reiser sed with costs, mid the cause remanded for fur- 
ther proceedings in conformity to the opinion of the court. 

II. In the Second Case. . . . Power to tax for the sup- 
port of the State governments exists in the States independently 

11 Cooley V. Port Wardens, 12 S. C, 286; Benedict v. Vanderbilt, 
Howard, 314. 1 Robt. N. Y.. 200. 

12 State V. Charleston, 4 Rich., i- 7 Louisiana An., 195. 



76 CASES ON CONSTITUTIONAL LAW. 

of the Federal government, and it may well be admitted that 
where there is no cession of jurisdiction for the purposes speci- 
fied in the Constitution, and no restraining compact between the 
States and the Federal government, the power in the States to 
tax reaches all the property within the State which is not properly 
denominated the instruments or means of the Federal govern- 
ment.^* 

Concede all that and still the court is of opinion that the tax 
in this case is a duty of tonnage, and that the law imposing it 
is plainly unconstitutional and void. Taxes, as the law provides, 
must be assessed by the assessor in each county on and from the 
following subjects and at the following rates, to wit: "On all steam- 
boats, &c., plying in the navigable waters of the State, at the rate 
of one dollar per ton of the registered tonnage thereof," which 
must be assessed and collected at the port where such steamboats 
are registered, &c.^^ Copied as the provision is from the enactment 
of the previous year, it is obvious that it must receive the same 
construction, and as the tax is one dollar per ton, it is too plain 
for argument that the amount of the tax depends upon the carry- 
ing capacity of the ste?imboat and not upon her value as property, 
as the experience of every one shows that a small steamer, new 
and well built, may be of much greater value than a large one,. 
badly built or in need of extensive repairs. Separate lists are made 
for the county and school taxes, but the two combined amount 
exactly to one dollar per ton, as in the levy for the State tax,, 
and the court is of the opinion that the case falls within the same 
rule as the case just decided. 

Evidently the word tonnage in commercial designation means 
the number of tons burden the ship or vessel will carry, as 
estimated and ascertained by the official admeasurement and com- 
putation prescribed by the public authority. Eegulations upon 
the subject are enacted by Parliament in the parent country and 
by Congress in this country, as appears by several acts of Con- 
gress.^'' Tonnage, says a writer of experience, has long been an 
official term intended originally to express the burden that a ship 
would carry, in order that the various dues and customs which 
are levied upon shipping might be levied according to the size 
of the vessel, or rather in proportion to her capability of carry- 

14 Nathan v. Louisiana, 8 How- 448; Weston v. Charleston, 2 Pet- 
ard, 82; McCulloch v. Maryland, ers, 467. 
4 Wheaton, 429; Saciety for Sav- is Revised Code, 169. 
ings V. Coite, 6 Wallace, 604; le 1 Stat, at Large, 305; 13 Id., 
Brown v. Maryland, 12 Wheaton, 444. 



STATE TONNAGE TAX CASES. 77 

ing burden. Hence the term, as applied to a ship, has become 
ahnost synonymous with that of size." Apply that interpreta- 
tion to the word tonnage as used in the tax act under considera- 
tion, and it is as clear as anything can be in legislation that the 
tax imposed by that provision is a tonnage tax, or duty of ton- 
nage, as the phrase is in the Constitution. 

State authority to tax ships and vessels, it is supposed by the 
respondent, extends to all cases where the ship or vessel is not 
employed in foreign commerce or in commerce between ports or 
places in diflPerent States. He concedes that the States cannot 
levy a duty of tonnage on ships or vessels if the ship or vessel 
is employed in foreign commerce or in commerce "among the 
States," but he denies that the prohibition extends to ships or 
vessels employed in commerce between ports and places in the 
same State, and that is the leading error in the opinion of the 
Supreme Court of the State, Founded upon that mistake the 
proposition is that all taxes are taxes on property, although levied 
on ships and vess'els duly enrolled and licensed, if the ship or 
vessel is not employed in foreign commerce or in commerce among 
the States. 

Ships or vessels of ten or more tons burden, duly enrolled and 
licensed, if engaged in commerce on waters which are navigable 
by such vessels from the sea, are ships and vessels of the United 
States entitled to the privileges secured to such vessels by the 
act for enrolling or licensing ships or vessels to be employed in 
the coasting trade.^^ 

Such a rule as that assumed by the respondent would incor- 
porate into the Constitution an exception which it does not con- 
tain. Had the prohibition in terms applied only to ships and ves- 
sels employed in foreign commerce or in commerce among the 
States, his construction would be right, but courts of justice 
cannot add any new provision to the fundamental law, and, if not, 
it seems clear to a demonstration that the construction assumed 
by the respondent is erroneous. 

Decree reversed, a7id the cause remanded for furtlier 'proceed- 
ings in conformity to the ojnnion of this court. 

17 Homan's Com. and Nav. Ton- is i Stat, at Large, 205; lb., 287. 
Bage. 



78 CASES ON CONSTITUTIONAL LAW. 

LOAN ASSOCIATION v. TOPEKA. 
20 Wallace, 655. Decided 1874. 

Eeeoe to the Circuit Court for the District of Kansas. 

The Citizens' Savings and Loan Association of Cleveland 
brought their action in the court below, against the city of Topeka, 
on coujDons for interest attached to bonds of the city of Topeka. 

The bonds on their face purported to be payable to the King 
'\Yrought-Iron Bridge Manufacturing axid Iron- Works Company, 
of Topeka, to aid and encourage that company in establishing and 
operating bridge shops in said city of Topeka, under and in pursu- 
ance of section twenty-six of an act of the legislature of the State 
of Kansas, entitled "An act to incorporate cities of the second 
class,'' approved February 29, 1872; and also of another "Act to 
authorize cities and counties to issue bonds for the purpose oi 
building bridges, aiding railroads, water-power, or other works of 
internal improvement," approved IMarch 2, 1872. 

The city issued one hundred of these bonds for $1,000 each, as 
a donation (and so it was stated in the declaration), to encourage 
that company in its design of establishing a manufactory of iron ' 
bridges in that city. 

The declaration also alleged that the interest coupons first due 
were paid out of a fund raised by taxation for that purpose, and 
that after this payment the plaintiff became the purchaser of the 
bonds and the coupons on which suit was brought for value. 

A demurrer was interposed by the city of Topeka to this declara- 
tion. 

The section of the act of February 39, on which the main reli- 
ance was placed for the authority to issue these bonds, reads as 
follows: 

"Section 76. The council shall have power to encourage the 
establishment of manufactories and such other enterprises as may 
tend to develop and improve such city, either by direct appro- 
priation from the general fund or by the issuance of bonds of 
such city in such amounts as the council may determine; Provided, 
That no greater amount than one thousand dollars shall be granted 
for any one purpose, unless a majority of the votes cast at an elec- 
tion called for that purpose shall authorize the same. The bonds 
thus issued shall be made payable at any time within twenty 
years, and bear interest not exceeding ten per cent, per annum." 



LOAN ASSOCIATION v. TOPEKA. 79 

It was conceded that the steps required by this act prerequisite 
as to issuing the bonds were regular, as were also the other details, 
and that the language of the statute was sufficient to justify tliQ 
action of the city authorities, if the statute was within the consti- 
tutional competency of the legislature. 

The single question, therefore, for consideration raised by the 
demurrer was the authority of the legislature of the State of 
Kansas to enact this part of the statute. 

The court below denied the authority, placing the denial on two 
grounds: — 

1st. That this part of the statute violated the fifth section 
of Article XII of the Constitution of the State of Kansas; a sec- 
tion in these words: — 

"Section 5. Provision shall be made by general law for the 
organization of cities, towns, and villages; and their power of tax- 
ation, assessment, borrowing money, contracting debts, and loan- 
ing their credit, shall be so restricted as to prevent the abuse of 
such power." 

[The argument here was that the section of tlie act of February 
29, 1872, conferring the power to issue bonds, contained no re- 
striction as to the amount which the city might issue to aid man- 
ufacturing enterprises, and that the failure of the legislature to 
limit and restrict the power so as to prevent abuse, violated the 
fifth section of Article XII of the Constitution above referred to.] 

2d'. That the act authorized the towns and other municipalities 
to which it applied, by issuing bonds or lending its credit, ^ 
take the property of the citizen under the gaiise of taxation to 
pay these bonds, and use it in aid of the enterprises of others 
which were not of a public character; that this was a^.peryersion 
of the right of taxation, which could only be exercised for a 
public use, to the aid of individual interests and personal pur- 
poses of profit and gain. 

The court beloAV accordingly, sustaining the demurrer, gav"i>^ 
judgment in favor of the defendant, the city of Topeka, and t^ 
its judgment this v;rit of error was taken. . . . 

Mr. Justice Miller delivered the opinion of the court. 

Two grounds are taken in the qiinion of the circuit judge and 
in the argument of counsel for defendant, on which it is insisted 
that the section of the statute of February 29, 1872, on which 
the main reliance is placed to issue the bonds, is unconstitutional. 



80 CASES ON CONSTITUTIONAL LAW. 

^Tlifi first of these is, that by section five of article twelve of the 
Constitution of that State it is declared that provision shall be 
made by general law for the organization of cities, towns, and 
villages; and their power of taxation, assessment, borrowing 
money, contracting debts, and loaning their credit, shall be so re- 
stricted as to prevent the abnse of such power. 

The argument is that the statute in question is void because it 
authorizes cities and towns to contract debts, and does not con- 
tain any restriction on the power so conferred. But whether the 
statute which confers power to contract debts should always con- 
tain some limitation or restriction, or whether a general restric- 
tion applicable to all cases should be passed, and whether in the 
absence of both the grant of power to contract is wholly void, 
are questions whose solution we prefer to remit to the State 
courts, as in this case we find ample reason to sustain the demur- . 
rer on the second ground on which it is argued by counsel and 
siastained by the Circuit Court. 
r That jDroposition is that the act authorizes the towns and other 
municipalities to which it applies, by issuing bonds or loaning their 
credit, to take the property of the citizen under the guise of tax- 
ation to pay these bonds, and use it in aid of the enterprises of 
others which are not of a public character, thus perverting the 
right of taxation, which can only be exercised for a public use, 
to the aid of individual interests and personal purposes of profit 
and gainy* 

The proposition as thus broadly stated is not new, nor is the 
question which it raises diificult of solution. 

If these municipal corporations, which are in fact subdivisions 
of the State, and which for many reasons are vested with quasi- 
legislative powers, have a fund or other property out of which 
they can pay the debts which they contract, without resort to 
taxation, it may be within the power of the legislature of the 
State to authorize them to use it in aid of projects strictly private 
or personal, but which would in a secondary manner contribute 
to the public good; or where there is property or money vested 
in a corporation of the kind for a particular use, as public wor- 
ship or charity, the legislature may pass laws authorizing them 
to make contracts in reference to this property, aiid incur debts 
payable from that source. 
/~ But such instances are few and exceptional, and the proposi- 
I tipn is a very broad one, that debts contracted by municipal cor- 
\ porations must be paid, if paid at all, out of taxes which they 
\may lawfully levy, and that all contracts creating debts to be paid 



LOAN ASSOCIATION v. TOPEKA. 81 

in future, not limited to payment from some other source, imply \ 
an obligation to pay by taxation. It follows that in this class i 
of cases the right to contract must be limited by the right to tax,/ 
and if in the given case, no tax can lawfully be levied to pay the 
debt, the contract itself is void for want of authority to make^.it/ 

If this were not so, these corporations could make valid prom- 
ises, which they have no means of fulfilling, and on which even 
the legislature that created them can confer no such power. The 
validity of a contract which can only be fulfilled by a resort to 
taxation depends on the power to levy the tax for that purpose.^ 

It is, therefore, to be inferred that when the legislature of the 
State authorizes a county or city to contract a debt by bond, it 
intends to authorize it to levy such taxes as are necessary to pay 
the debt, unless there is in the act itself, or in some general statute, 
a limitation upon the power of taxation which repels such an 
inference. ^ 

With these remarks and with the reference to the authorities 
which support them, we assume that unless the legislature of Kan- 
sas had the right to authorize the counties and towns in that State 
to levy taxes to be used in aid of manufacturing enterprises, con- 
ducted by individuals, or private corporations, for purposes of 
gain, the law is void, and the bonds issued under it are also void. 
We proceed to the inquiry whether such a power exists in the legis- 
lature of the State of Kansas. 

We have already said the question is not new. The subject of 
the aid voted to railways by counties and towns has been brought 
to the attention. of the courts of almost every State in the Union. 
It has been thoroughly discussed and is still the subject of dis- 
cussion in those courts. It is quite true that a decided prepon- 
derance of authority is to be found- in favor of the proposition 
that the legislatures of the States, unless restricted by some special 
provisions of their constitutions, may confer upon these munici- 
pal bodies the right to take stock in corporations created to build 
railroads, and to lend their credit to such corporations. Also 
to levy the necessaiy taxes on the inhabitants, and on property 
within their limits subject to general taxation, to enable them to 
pay the debts thus incurred. But very few of these courts have 
decided this without a division among the judges of which they 

1 Sharpless v. Mayor of Phila- Jay, 60 Maine, 127; Lowell v. 

delphia, 21 Pennsylvania State, Boston, Massachusetts (MS.); 

147, 167; Hanson v. Vernon, 27 Whiting v. Fond du Lac, 25 Wis- 

lowa, 28; Allen v. Inhabitants of consin, 188. 

6 



83 CASES ON CONSTITUTIONAL LAW. 

were composed, while others have decided against the existence of 
the power altogether.- 

^ In all these eases, however, the decision has turned upon the 
question whether the taxation by which this aid was afforded to 
the building of railroads was for a public purpose. Those who 
came to the conclusion that it was, held the laws for that purpose 
valid. Those who could not reach that conclusion held them 
void. In all the controversy this has been the turning point of 
the judgments of the courts. And it is safe to say that no court 
has held debts created in aid of railroad companies, by counties 
or towns, valid on any other ground than that the purpose for 
which the taxes were levied was a public use, a purpose or object 
which it was the right and the duty of State governments to 
assist by money raised from the people by taxation. The argu- 
ment in opposition to this power has been, that railroads built 
by corporations organized mainly for purposes of gain — the roads 
which they built being under their control, and not that of the 
State — were private and not public roads, and the tax assessed on 
the people went to swell the profits of individuals and not to the 
good of the State, or the benefit of the public, except in a remote 
and collateral way. On the other hand, it was said that roads, 
canals, bridges, navigable streams, and all other highways had in 
all times been matter of public concern. That such channels of 
travel and of the carrying business had always been established, 
improved, regulated by the State, and that the railroad had not 
lost this character because constructed by individual enterprise, 
aggregated into a corporation. 

We are not prepared to say that the latter view of it is not the 
true one, especially as there are other characteristics of a public 
nature conferred on these corporations, such as the power to obtain 
right of way, their subjection to the laws which govern common 
carriers, and the like, which seem to justify the proposition. Of 
the disastrous consequences which have followed its recognition 
by the courts and which were predicted when it was first estab- 
lished there can be no doubt. _,^ 

We have referred to this history of the contest over aid to rail- 
roads by taxation, to show that the strongest advocates for the 
validity of these laws never placed it on the ground of the un- 
limited power in the State legislature to tax the people, but con- 
ceded that where the purpose for which the tax was to be issued, 

2 The State v. Wapello Co., 9 21 Pennsylvania State, 147; Whit- 
Iowa, 308; Hanson v. Vernon, 27 ing v. Fond du Lac, 25 Wisconsin, 
Id., 28; Sharpless v. Mayor, etc., 188. 



LOAN ASSOCIATION v. TOPEKA. 83 

could no longer be justly claimed to have this public character, 
but was purely in aid of private or personal objects, the law au- 
thorizing it was beyond the legislative power, and was an un- 
authorized invasion of private right.' -^ 

It must be conceded that there are such rights in every free 
government beyond the control of the State. A government which 
recognized no such rights, which held the lives, the liberty, and the 
property of its citizens subject at all times to the absolute disposi- 
tion and unlimited control of even the most democratic de]3ository 
of power, is after all but a despotism. It is true it is a despotism 
of the many, of the majority, if you choose to call it so, but it is 
none the less a despotism. It may well be doubted if a man is to 
hold all that he is accustomed to call his ow^n, all in which he 
has placed his happiness, and the security of which is essential 
to that happiness, under the unlimited dominion of others, whether 
it is not wiser that this powder should be exercised by one man 
than by many. The theory of our governments, State and na- 
tional, is opposed to the deposit of unlimited power anywhere. 
The executive, the legislative, and the judicial branches of these 
governments are all of limited and defined powers. 

There are limitations on such power which grow out of the 
essential nature of all free governments. Implied reservations of 
individual rights, without which the social compact could not 
exist, and wdiich are respected by all governments entitled to the 
name. No court, for instance, would hesitate to declare void a 
statute which enacted that A and B, who were husband and wife 
to each other, should be so no longer, but that A should thereafter 
])e the husband of C, and B tlie wife of D. Or which should enact 
that the homestead now owned by A should no longer be his, but 
should henceforth be the property of B.* , 

Of all the powers conferred upon government that of taxation 
is most liable to abuse. Given a purpose or object for which tax-, 
ation may be lawfuly used, and the extent of its exercise is in its] 
very nature unlimited. It is true that express limitation on the 
amount of tax to be levied or the things to be taxed may be im- 
posed by constitution or statute, but in most instances for which 
taxes are levied, as the support of government, the prosecution of 

•■' Olcott v. Supervisors, IG Wal- 4 Whiting v. Fond du Lac, 25 

lace, 689; People v. Salem, 20 Wisconsin, 188; Cooley on Consti- 

Michigan, 452; Jenkins v. Andov- tutional Limitations, 129, 175, 487; 

er, 103 Massachusetts. 94; Dillon Dillon on Municipal Corporations, 

on Municipal Corporations, § 587; § 587. 
2 Redfield's Laws of Railways, 398, 
rule 2. 



84 CASES ON CONSTITUTIONAL LAW. 

war, the national defense, any limitation is unsafe. The entire 
resources of the people should in some instances be at the disposal 
of the government. 

The power to tax is therefore, the strongest, the most pervad- 
ing of all the powers of government, reaching directly or indirectly 
to all classes of the people. It was said by Chief Justice Marshall, 
in the case of McCulloch v. The State of Maryland,^ that the power 
to tax is the power to destroy. A striking instance of the truth 
of the proposition is seen in the fact that the existing tax of ten 
per cent., imposed by the United States on the circulation of all 
other banks than the National banks, drove out of existence every 
State bank of circulation within a year or two after its passage. 
This power can as readily be employed against one class of indi- 
viduals and in favor of another, so as to ruin the one class and 
give unlimited wealth and prosperity to the other, if there is no 
implied limitation of the uses for which the power may be exer- 
cised. 

To lay with one hand the power of the government on the pr"o|P 
erty of the citizen, and with the other to bestow it upon favored 
individuals to aid private enterprises and build up private for- 
tunes, is none the less a robbery because it is done under the forms 
of law and is called taxation. This is not legislation. It is a' 
decree under legislative forms. . 

NorisJJL.iajiation. A "tax," says Webster's Dictionary, "is a 
rate or sum of money assessed on the person or property of a citizen 
by government for the use of the nation or State." "Taxes are 
burdens or charges imposed by the legislature upon persons or , 
property to raise money for public purposes."** 

Coulter, J., in Northern Liberties v. St. John's Church,^ says, 
very forcibly: "I think the common mind has everywhere taken in 
the understanding that taxes are a public imposition, levied by au- 
thority of the government for the purpose of carrying on the gov- 
ernment in all its machinery and operations — that they are imposed 
for a public jDurpose." — ■^■' 

We have established, we think, beyond cavil thalLjthere can be 
no lawful tax which is not .laid for_a,jpublie^purpose. It may not 
be&a«yto draw the line in all eases so as to decide what is a public 
purpose in this sense and what is not. 

54 Wheaton, 431. York, 11 Johnson, 77; Camden v. 

6 Cooley on Constitutional Limi- Allen, 2 Butcher, 398; Sharpless v. 

tations, 479. Mayor of Philadelphia, supra; 

T 13 Pennsylvania State, 104; see Hanson v. Vernon, 27 Iowa, 47; 

also Pray v. Northern Liberties, Whiting v. Fond du Lac, 25 Wis- 

31 Id., 69; Matter of Mayor of New consin, 188. 



SPRINGER V. UNITED STATES. 85 

It is undoubtedly the duty of the legislature which imposes ] 
or authorizes municipalities to impose a tax to see that it is not/ 
to be used for purposes of private interest instead of a public use,/ 
and the courts can only be Justified in interposing when a violation! 
of this principle is clear and the reason for interference cogentj 
And in deciding whether, in the given case, the object for which 
the taxes are assessed falls upon the one side or the other of this 
line, they must be governed mainly by the course and usage of 
the government, the objects for which taxes have been customarily 
and by long course of legislation levied, what objects or purposes 
have been considered necessary to the support and for the proper 
use of the government, whether State or municipal. Whatever 
lawfully pertains to this, and is sanctioned by time and the acqui- 
escence of the people, may well be held to belong to the public 
use, and proper for the maintenance of good government, though 
this may not be the only criterion of rightful taxation. 

But in the case before us, in which the towns are authorized>v 
to contribute aid by way of taxation to any class of manufacturers, ) 
there is no difficulty in holding that this is not such a public pur- / 
pose as we have been considering. If it be said that a benefit 
results to the local public of a town by establishing manufactures, 
the same may be said of any other business or pursuit which em- 
ploys capital or labor. The merchant, the mechanic, the inn- 
keeper, the banker, the builder, the steamboat owner are equally 
promoters of the public good, and equally deserving the aid of the 
citizens by forced contributions. No line can be drawn in favor 
of the manufacturer which would not open the coffers of the pub- 
lic treasury to the importunities of two-thirds of the business 
men of the city or town. . . . 

1 Judgment affirfnMT] 

[Mr. Justice Clifford delivered a dissenting opinionTj 



SPEINGER V. UNITED STATES. 
102 U. S., 586. Decided 1880. 

[Error to the Circuit Court of the United States for the South- 
ern District of Illinois. The facts are sufficiently stated in the 
opinion of the court.] 

Mr. Justice Sv^ayne, after stating the facts, delivered the 
opinion of the court. 



86 CASES ON CONSTITUTIONAL LAW. 

The central and controlling question in this case is whether the 
tax which was levied on the income, gains, and profits of the plaint- 
iff in error, as set forth in the record, and by pretended virtue 
of the acts of Congress and parts of acts therein mentioned, is a 
direct tax. . . . If it was, not having been laid according to 
the requirements of the Constitution, it must be admitted that 
the laws imposing it, and the proceedings taken under them by 
the assessor and collector for its imposition and collection, were 
all void. 

Many of the provisions of the Articles of Confederation of 1777 
were embodied in the existing organic law. They provided for 
a common treasury and the mode of supplying it with funds. The 
latter was by requisitions upon the several States. The delays and 
difficulties in procuring the compliance of the States, it is known, 
was one of the causes that led to the adoption of the present Con- 
stitution. This clause of the articles throws no light on the ques- 
tion we are called u.pon to consider. Nor does the journal of the 
proceedings of the constitutional convention of 1787 contain any- 
thing of much value relating to the subject. 

It appears that on the 11th of July, in that year, there was a 
debate of some warmth involving the topic of slavery. On the day 
following, Gouverneur Morris, of ISTew York, submitted a propo- 
sition "that taxation shall be in proportion to representation." It 
is further recorded in this day's proceedings, that Mr. Morris hav- 
ing so varied his motion by inserting the word "direct," it passed 
nem. con., as follows: "Provided always, that direct taxes ought 
to be proportioned to representation." 3 Madison Papers, by Gil- 
pin, pp. 1079-1081. 

On the 24th of the same month, Mr. Morris said that "he 
hoped the committee would strike out the whole clause. . , . 
He had only meant it as a bridge to assist us over a gulf; having 
passed the gulf, the bridge may be removed. He thought the 
principle laid down with so much strictness liable to strong objec- 
tions." Id. 1197. The gulf was the share of representation 
claimed by the Southern States on account of their slave popula- 
tion. But the bridge remained. The builder could not remove 
it, much as he desired to do so. All parties seem thereafter to have 
avoided the subject. With one or two immaterial exceptions, not 
necessary to be noted, it does not appear that it was again ad- 
verted to in any way. It was silently incorporated into the draft 
of the Constitution as that instrument was finally adopted. 

It does not appear that an attempt was made by any one to 
def.ne the exact meaning of the language employed. 



SPRINGER V. UNITED STATES. 87 

In the twenty-first number of the Federalist, Alexander Ham- 
ilton, speaking of taxes generally, said: "Those of the direct 
kind, which principally relate to land and buildings, may admit of 
a rule of apijortionment. Either the value of the land, or the 
number of the people, may serve as a standard." The thirty-sixth 
number of that work, by the same author, is devoted to the subject 
of internal taxes. It is there said, "They may be subdivided into 
those of the direct and those of the indirect kind." In this con- 
nection land-taxes and poll-taxes are discussed. The former are 
commended and the latter are condemned. Nothing is said of any 
other direct tax. In neither case is there a definition given or at- 
tempted of the phrase, "direct tax." 

The very elaborate researches of the plaintifE in error have fur- 
nished us with nothing from the debates of the State conventions, 
by whom the Constitution was adopted, which gives us any aid. 
Hence we may safely assume that no such material exists in that 
direction, though it is known that Virginia proposed to Congress 
an amendment relating to the subject, and that Massachusetts, 
South Carolina, New York, and North Carolina expressed strong 
disapprobation of the power given to impose such burdens. 1 
Tucker's Blackstone, pt. 1, app., 235. 

Perhaps the two most authoritative persons in the convention 
touching the Constitution were Hamilton and Madison. The lat- 
ter, in a letter of May 11, 1794, speaking of the tax which was 
adjudicated upon in Ilylton v. United States (3 Dall., 171), said, 
"The tax on carriages succeeded in spite of the Constitution by a 
majority of twenty, the advocates of the principle being reinforced 
by the adversaries of luxury." 2 Mad. "Writings (pub. by Con- 
gress), p. 14. In another letter, of the 7th of February, 1796, re- 
ferring to the case of Hylton v. United States, then pending, he 
remarked: "There never was a question on which my mind was 
better satisfied, and yet I have very little expectation that it will 
be viewed in the same light by the court that it is by me." Id., 
77. Whence the despondency thus expressed is unexplained. 

Hamilton left behind him a series of legal briefs, and among 
them one entitled "Carriage tax." See vol. vii., p. 848, of his 
works. This paper was evidently prepared with a view to the 
Hylton case, in which he appeared as one of the counsel for the 
United States. In it he says: "What is the distinction between 
direct and indirect taxes? It is a matter of regret that terms so 
uncertain and vague in so important a point are to be found in 
the Constitution. We shall seek in vain for any antecedent set- 
tled legal meaning to the respective terms. There is none. We 



88 CASES ON CONSTITUTIONAL LAW. 

shall be as much at a loss to tind any disposition of either which 
can satisfactorily determine the point." There being many car- 
riages in some of the States, and very few in others, he points out 
the preposterous consequences if such a tax be laid and collected 
on the princij^le of apportionment instead of the rule of uniformity. 
He insists that if the tax there in question was a direct tax, so 
would be a tax on ships, according to their tonnage. He suggests 
that the boundary line between direct and indirect taxes be set- 
tled by "a. species of arbitration," and that direct taxes be held to 
be ctnly "capitation or poll taxes, and taxes on lands and buildings, 
and general assessments, whether on the whole property of indi- 
viduals or on their whole real or personal -estate. All else must, 
of necessity, be considered as indirect taxes." 

The tax here in question falls within neither of these categories. 
It is not a tax on the "whole . . . personal estate" of the in- 
dividual, but only on his income, gains, and profits during a year, 
which may have been but a small part of his personal estate, and in 
most cases would have been so. This classification lends no sup- 
port to the argument of the plaintiff in error. 

The Constitution went into operation on the -ith of March, 1789. 

It is important to look into the legislation of Congress touching 
the subject since that time. The following summary will suffice 
for our purpose. We shall refer to the several acts of Congress to 
be examined, according to their sequence in dates. In all of them 
the aggregate amount required to be collected was apportioned 
among the several States. 

The act of July 14, 1798, c. 75, 1 Stat. 53. This act imposed 
a tax upon real estate and a capitation tax upon slaves. 

The act of Aug. 2, 1813, c. 37, 3 Id. 53. By this act the tax 
was imposed upon real estate and slaves, according to their respect- 
ive values in money. 

The act of Jan. 19, 1815, c. 21, Id. 164. This act imposed the 
tax upon the same descriptions of property, and in like manner as 
the preceding act. 

The act of" Feb. 27, 1815, c. 60, Id. 216, apphed to the District 
of Columbia the provisions of the act of Jan. 19, 1815. 

The act of March 5, 1816, c. 24, Id. 255, repealed the two pre- 
ceding acts, and re-enacted their provisions to enforce the collec- 
tion of the smaller amount of tax thereby prescribed. 

The act of Aug. 5, 1861, c. 45, 12 Id. 294, required the tax to be 
levied wholly on real estate. 

The act of June 7, 1S62, c. 98, Id. 422, and the act of Feb. 6, 
1863, c. 21, Id. 640, both relate only to the collection, in insurrec- 



SPRINGER V. UNITED STATES. 8^ 

tionary districts, of the direct . tax imposed by the act of Aug. 
5, 1861, and need not, therefore, be more particularly noticed. 

It will thus be seen that whenever the government has imposed 
a tax which it recognized as a direct tax, it has never been applied 
to any objects but real estate and slaves. The latter application 
may be accounted for upon two grounds: 1. In some of the States 
slaves were regarded as real estate (1 Hurd, Slavery,. 239; Veazie 
Bank v. Fenno, 8 Wall., 533); and, 2. Such an extension of the 
tax lessened the burden upon the real estate where slavery existed, 
while the result to the national treasury was the same, whether the 
slaves were omitted or included. The wishes of the South were, 
therefore, allowed to prevail. We are not aware that the question 
of the validity of such a tax was ever presented for adjudication. 
Slavery having passed away, it cannot hereafter arise. It does 
not appear that any tax like the one here in question was ever re- 
garded or treated by Congress as a direct tax. This uniform 
practical construction of the Constitution touching so important 
a point, through so long a period, by the legislative and executive 
departments of the government, though not conclusive, is a con- 
sideration of great weight. 

There are four adjudications by this court to be considered. 
They have an important, if not a conclusive, application to the 
case in hand. . . . [Here follows a discussion of Hylton v. 
United States, 3 Dallas, 171.] In Pacific Insurance Co. v. Soule 
(7 Wall., 433), the taxes in question were upon the receipts of 
such companies from premiums and assessments, and upon all 
sums made or added, during the year, to their surplus or contin- 
gent funds. This court held unanimously that the taxes were not 
direct taxes, and that they were valid. . . . [Here follows an 
extract from Veazie Bank v. Fenno, 8 Wallace, 533.] In Scholey 
v. Eew (23 Wall., 331), the tax involved was a succession tax, im- 
posed by the acts of Congress of June 30, 186-4, and July 13, 1866. 
It was held that the tax was not a direct tax, and that it was 
constitutional and valid. In delivering the opinion of the courts 
Mr. Justice Clifford, after remarking that the tax there in ques- 
was not a direct tax, said: "Instead of that, it is plainly an excise 
tax or duty, authorized by sect. 1, art. 8, of the Constitution, 
which vests the power in Congress to lay and collect taxes, duties, 
imposts, and excises to pay the debts and provide for the common 
defense and general welfare." He said further: "Taxes on houses, 
lands, and other permanent real estate have always been deemed 
to be direct taxes, and capitation taxes, by the express words of 
the Constitution, are within the same category; but it has never 



90 CASES ON CONSTITUTIONAL LAW. 

been decided that any other legal exactions for the support of the 
Federal government fall within the condition that unless laid in 
l)roportion to numbers the assessment is invalid." 

All these cases are undistinguishable in principle from the case 
now before us, and they are decisive against the plaintiff in error. 

The question, what is a direct tax, is one exclusively in Ameri- 
can Jurisprudence. The text-writers of the country are in entire 
accord upon the subject. 

Mr. Justice Story says all taxes are usually divided into two 
classes, — those which are direct and those which are indirect, — and 
that "under the former denomination are included taxes on land 
or real property, and, under the latter, taxes on consumption." 
1 Const., sect. 950. 

Chancellor Kent, speaking of the case of Hylton v. United States, 
says: "The better opinion seemed to be that the direct taxes con- 
templated by the- Constitution were only two, viz., a capitation 
or poll tax and a tax on land." 1 Com., 257. See also Cooley, 
Taxation, p. 5, note 2; Pomeroy, Const. Law, 157; Sharswood's 
Blaekstone, 308, note; Rawle, Const., 30; Sergeant, Const., 305. 

We are not aware that any writer, since Hylton v. United States 
was decided, has expressed a view of the subject different from 
that of these authors. 

Our conclusions are, that direct taxes, within the meaning of the 
(Constitution, are only capitation taxes, as expressed in that in- 
strument, and taxes on real estate; and that the tax of which the 
plaintiff in error complains is within the category of an excise or 
duty. Pomeroy, Const. Law, 177; Pacific Insurance Co. v. Soule, 
and Scholey v. Rew, supra. 

Against the considerations, in one scale, in favor of these propo- 
sitions, what has been placed in the other, as a counterpoise? Our 
answer is, certainly nothing of such weight, in our judgment, as 
to require any special reply. The numerous citations from the 
writings of foreign political economists, made by the plaintiff in 
error, are sufficiently answered by Hamilton in his brief, before 
referred to. Judgment affirmed. 



POLLOCK V. FARMERS' LOAN AND TRUST CO. 91 

POLLOCK V. FAKMKKS' LOAN AND TRUST COMPANY. 

(Uehearing.) 

HYDE V. CONTINENTAL TRUST COMPANY. (Rehearing.) 

158 IJ. S.. (JOI. Decided 189.'".. 

[^JMiis was a bill (il(!(l by ('liarlcs l'()llo(;l<, u citizen of tlu; Slate 
of Massachusetts, on behalf of himself and all other stock-holders 
of the defendant coniijany similiirly silnatcd, agaii)st the h'iiniiers' 
Loan and Trnst Co., a cor|)or;jti()n of tlu! Slide of New York. 
The bill ;illc;^ed that the dcrcndnnl chiinicd iiiilliorily under IIk; 
provisions (d' llu; act of Con<;ress of August 15, JHi)l, to pay to 
the United States a tax of two per centum on the net jjrolits of 
said company, including the income derived from real estate and 
bonds of the City of New York owned by it. The bill further 
alleged that such a tax was unconstitutional, null, and void, in 
that it was a direct tax with respe(;,t to tin; income from real estate, 
and in that the income from stocks and bonds of the States of 
the United States and counties and municipalities therein is not 
subject to the tiixing power of Congress. ^Plu! bill prayed that Hie 
|)rovisions known as the income lax in(;orpoi'}il('d in tlu; act of Con- 
gress of August 15, 1894, might be adjudged unconstitutional, 
null, and void, and that the defendants might be nsstrained from 
voluntarily complying with such jjrovisions. On April 8, 189.5, the 
Court, one justice being absent, decided: 

"A tax on the rents or income of r(".\\ eslnlc is a dirc-ct tax, 
within the meaning of that term as u<(h\ in Hie (constitution of 
the United States. 

"A tax u|)on incomes derived froni I he int(;rest of bonds issued 
by a municipal cor|)oration is a tax u[)on Ihe power of tin; State 
and its instrumentalities to borrow money, and is consecpiently 
repugnant to the (Constitution of the United States. 

"Upon each of the other questions argued at bar, to wit: 
1. Whether the void provision as to rent and inconu; from rejil 
estate invalidates the whole act? 2. Whether as to the income 
from personal propei'ty as such, the act is unconstitutional, as lay- 
ing direct taxes? 3. Whether any part of tin; tax, if not consid- 
ered as a direct tax, is invalid for want of uniformity on either of 
the grounds suggested? — the Justices who heard the argument are 
equally divided, and, therefore, no opinion is expressed." (1.57 
U. S.,"429.) 

Inasmuch as the cases had not been heard by a full court, and 



93 CASES ON CONSTITUTIONAL LAW. 

since the qiTCstion upon which the court was equally divided still 
lacked authoritative determination, the appellants were granted a 
rehearing. The cases w^ere re-argued before the full bench, and on 
May 20, 1895, the following opinion was rendered.] 

Me. Chief Justice Fullee delivered the opinion of the court. 

Wlienever this court is required to pass upon the validity of an 
act of Congress as tested by the fundamental law enacted by the 
people, the duty imposed demands in its discharge the utmost de- 
liberation and care and invokes the deepest sense of responsibility. 
And this is especially so when the question involves the exercise 
of a great governmental power and brings into consideration, as 
vitally affected by the decision, that complex system of govern- 
ment so sagaciously framed to secure and perpetuate "an inde- 
structible union composed of indestructible States." 

We have, therefore, in anxious desire to omit nothing which 
might in any degree tend to elucidate the questions submitted, 
and aided by further able arguments embodying the fruits of 
elaborate research, carefully re-examined these cases, with the re- 
sult that, while our former conclusions remain unchanged, their 
scope must be enlarged by the acceptance of their logical conse- 
quences. The very nature of the constitution, as observed by Chief 
Justice Marshall in one of his greatest judgments, "requires that 
only its great outlines should be marked, its important objects 
designated, and the minor ingredients which compose those ob- 
jects be deducted from the nature of the objects themselves." "In 
considering this question, then, we must never forget that it is a 
Constitution that we are expounding." McCulloch v. Maryland,- 
4 Wheat., 316, 407. 

As heretofore stated, the Constitution divided Federal taxation 
into two great classes, the class of direct taxes and the class of 
duties, imposts, and excises and prescribed two rules which qual- 
ified the grant of power as to each class. 

The power to lay direct taxes, apportioned among the several 
States in proportion to their representation in the popular branch 
of Congress, a representation based on population as ascertained 
by the census, was plenary and absolute, but to lay direct taxes 
without apportionment was forbidden. The power to lay duties, 
imposts, and excises was subject to the qualification that the im- 
position must be uniform throughout the United States. 

Our previous decision was confined to the consideration of the 
validity of the tax on the income from real estate and on the in- 
come from municipal bonds. The question thus limited, was 



POLLOCK V. FARMERS' LOAN AND TRUST CO. 93 

whether such taxation was direct or not, in the meaning of the 
Constitution, and the court went no further as to the tax on the 
incomes from real estate than to hold that it fell within the same 
class as the source whence the income was derived, that is, that a 
tax upon the realty and a tax upon the receipts therefrom were 
alike direct; while as to the income from municipal bonds, that 
could not be taxed, because of want of power to tax the source, 
and no reference was made to the nature of the tax being direct 
or indirect. 

We are now permitted to broaden the field of inquiry and deter- 
mine to which of the two great classes a tax upon a person's entire 
income, whether derived from rents or products or otherwise, of 
real estate, or from bonds, stocks or other forms of personal prop- 
erty, belongs; and we are unable to conclude that the enforced 
subtraction from the yield of all the owner's real or personal prop- 
erty, in the manner prescribed, is so different from a tax upon the 
property itself that it is not a direct but an indirect tax in the 
meaning of the Constitution. 

The words of the Constitution are to be. taken in their obvious 
sense and to have a reasonable construction. In Gibbons v. Ogden, 
Chief Justice Marshall, with his usual felicity, said: 

"As men, whose intentions require no concealment, generally 
employ the words which most directly and aptly express the ideas 
they intend to convey, the enlightened patriots who framed our 
Constitution and the people who adopted it must be understood to 
have employed words in their natural sense and to have intended 
what they have said." 9 Wheat., 1, 188. . . . 

We know of no reason for holding otherwise than that the words 
"direct taxes" on the one hand, and "duties, imposts, and excises" 
on the other, were used in the Constitution in their natural and 
obvious sense, nor, in arriving at what those terms embrace, do we 
perceive any ground for enlarging them beyond, or narrowing 
them within, their natural and obvious import at the time the 
Constitution was framed and ratified. . . . 

[Here follows a discussion of the views of Hamilton and Madison 
and of the Hylton case.] 

What was decided in the Hylton case was, then, that a tax on 
carriages was an excise, and, therefore, an indirect tax. The con- 
tention of Mr. Madison in the House was only so far disturbed by 
it, that the court classified it where he himself would have held it 
constitutional, and he subsequently as President approved a simi- 
lar act. 3 Stat., 40. The contention of Mr. Hamilton in the Fed- 



9-i CASES ON CONSTITUTIONAL LAW. 

eralist was not disturbed by it in the least. In onr judgment, the 
construction given to the Constitution by the authors of the Fed- 
eralist (the five numbers contributed by Chief Justice Jay related 
to the danger from foreign force and influence, and to the treaty- 
making power) should not and cannot be disregarded. . . . 

Whatever the speculative views of political economists or rev- 
enue reformers may be, can it be properly held that the Constitu- 
tion, taken in its plain and obvious sense, and with due regard to 
the circumstances attending the formation of the government, au- 
thorizes a general unapportioned tax on the products of the farm 
and the rents of real estate, although imposed merely because of 
ownership and with no possible means of escape from pa}Tnent, as 
belonging to a totally different class from that which includes the 
property from whence the income proceeds? 

There can be only one answer, unless the constitutional restric- 
tion is to be treated as utterly illusory and futile, and the object of 
its framers defeated. We find it impossible to hold that a funda- 
mental requisition, deemed so important as to be enforced by two 
provisions, one affirmative and one negative, can be refined away 
by forced distinctions between that which gives value to property 
and the property itself. 

Xor can we conceive any ground why the same reasoning doe& 
not apply to capital in personalty held for the purpose of income 
or ordinarily yielding income, and to the income therefrom. All 
the real estate of the country, and all its invested personal property, 
are open to the direct operation of the taxing power if an appor- 
tionment be made according to the Constitution. The Constitu- 
tion does not say that no direct tax shall be laid by apportionment 
on any other property than land; on the contrary, it forbids all 
unapportioned direct taxes; and we know of no warrant for ex- 
cepting personal property from the exercise of the power, or any 
reason Avhy an apportioned direct tax cannot be laid and assessed, 
as Mr. Gallatin said in his report ^vhen Secretary of the Treasury 
in 1812, "upon the same objects of taxation on which the direct 
taxes levied under the authority of the State are laid and assessed." 

Xor are we impressed with the argaiment that because in the 
four instances in which the power of direct taxation has been 
exercised, Congress did not see fit, for reasons of expediency, to 
levy a tax upon personalty, this amounts to such a practical con- 
struction of the Constitution that the power did not exist, that 
we must regard ourselves bound by it. We should regret to be 
compelled to hold the powers of the general government thus re- 



POLLOCK V. FARMERS' LOAN AND TRUST CO. 95 

stricted, and certainly cannot accede to the idea that the Consti- 
tution has become weakened by a particular course of inaction 
under it. 

The stress of the argument is thrown, however, on the assertion 
that an income tax is not a property tax at all; that it is not a 
real estate tax, nor a crop tax, nor a bond tax; that it is an assess- 
ment upon the taxpayer on account of his money-spending power 
as shown by his revenue for the year preceding the assessment; 
that rents received, crops harvested, interest collected, have lost all 
connection with their origin, and although once not taxable have 
become transmuted in their new form into taxable subject-matter; 
in other words, that income is taxable irrespective of the source 
whence it is derived. 

This was the view entertained by Mr. Pitt as expressed in his 
celebrated speech on introducing his income-tax law of 1799, and 
he did not hesitate to carry it to its logical conclusion. The Eng- 
lish loan acts provided that the public dividends should be paid 
"free of all taxes and charges whatsoever;" but Mr. Pitt success- 
fully contended that the dividends for the purposes of the income 
tax were to be considered simply in relation to the recipient as so 
much income, and that the holder had no reason to complain. And 
ithis, said Mr. Gladstone fifty-five years after, was the rational con- 
struction of the pledge. Financial Statements, 32. . . . 

We have unanimously held in this case that, so far as this law 
operates on the receipts from municipal bonds, it cannot be sus- 
tained, because it is a tax on the power of the States, and on their 
instrumentalities to borrow money, and consequently repugnant 
to the Constitution. But if, as contended, the interest when re- 
ceived has become merely money in the recipient's pocket, and 
taxable as such without reference to the source from which it 
came, the question is immaterial whether it should have been 
originally taxed at all or not. This was admitted by the Attorney 
General with characteristic candor; and it follows that, if the 
revenue derived from municipal bonds cannot be taxed l)ecause the 
source cannot be, the same rule applies to revenue from any other 
source not subject to the tax; and the lack of power to levy any 
but an apportioned tax on real estate and personal property equally 
exists as to the revenue therefrom. 

Admitting that this act taxes the income of property irre- 
spective of its source, still we cannot doubt that such a tax is nec- 
essarily a direct tax in the meaning of the Constitution. , . . 

Being direct, and therefore -to be laid by apportionment, is there 
any real difficulty in doing so? Cannot Congress, if the necessity 



96 CASES ON CONSTITUTIONAL LAW. 

exist of raising thirty^ forty, or any other number of million dollars 
for the sujoport of the government, in addition to the revenue from 
duties, imposts, and excises, apportion the quota of each State upon 
the basis of the census, and thus advise it of the payment which 
must be made, and proceed to assess that amount on all the real or 
personal property and the income of all persons in the State, and 
collect the same if the State does not in the meantime assume and 
pay its quota and collect the amount according to its own system 
and in its own way? Cannot Congress do this as respects either 
or all these subjects of taxation, and deal with each in such man- 
ner as might be deemed expedient, as indeed was done in the act 
of July 14, 1798 (C, 75, 1 Stat., 597)? Inconveniences might 
possibly attend the levy of an income tax, notwithstanding the 
listing of receipts, when adjusted, furnishes its own valuation; but 
that it is apportionable is hardly denied, although it is asserted 
that it would operate so unequally as to be undesirable. 

In the disposition of the inquiry whether a general unappor- 
tioned tax on the income of real and personal property can be sus- 
tained, under the Constitution, it is apparent that the suggestion 
that the result of compliance with the fundamental law would 
lead to the abandonment of that method of taxation altogether, 
because of the inequalities alleged to necessarily accompany its 
pursuit could not be allowed to influence the conclusion; but the 
suggestion not unnaturally invites attention to the contention of 
appetlants' counsel, that the want of uniformity and equality in 
this act is such as to invalidate it. Figures drawn from the census 
are given, showing that enormous assets of mutual insurance com- 
panies; of building associations; of mutual savings banks; large 
productive property of ecclesiastical oragnizations; are exempted, 
and it is claimed that the exemptions reach so many hundred 
millions that the rate of taxation would perhaps have been reduced 
one-half, if they had not been made. We are not dealing with the 
act from that point of view; but, assuming the data to be sub- 
stantially reliable, if the sum desired to be raised had been appor- 
tioned, it may be doubted whether any State, which paid its quota 
and collected the amount by its own methods, would, or could 
under its Constitution, have allowed a large part of the property 
alluded to to escape taxation. If so, a better measure of equality 
would have been attained than would be otherwise possible, since, 
according to the argument for the government, the rule of equality 
is not prescribed by the Constitution as to Federal taxation, and 
the observance of such a rule as inherent in all just taxation is 
purely a matter of legislative discretion. 



POLLOCK V. FARMERS' LOAN AND TRUST CO. 97 

Elaborate argument is made as to the efficacy and merits of an 
income tax in general, as on the one hand, equal and just, and on 
the other, elastic and certain; not that it is not open to abuse by 
such deductions and exemptions as might make taxation under it 
so wanting in uniformity and equality as in substance to amount 
to deprivation of property without due process of law; not that it 
is not open to fraud and evasion and is inquisitorial in its methods; 
but because it is pre-eminently a tax upon the rich, and enables 
the burden of taxes on consumption and of duties on imports to 
be sensibly diminished. And it is said that the United States, as 
"the representative of an indivisible nationality, as a political sov- 
ereign equal in authority to any other on the face of the globe, to 
all emergencies, foreign or domestic, and having at its command 
for offense and defense and for all governmental purposes all the 
resources of the nation," would be "but a maimed and crippled 
creation after all," unless it possesses the power to lay a tax on the 
income of real and personal proj)erty throughout the United 
States without apportionment. 

The power to tax real and personal property and the income 
from both, there being an apportionment, is conceded; that such a 
tax is a direct tax in the meaning of the Constitution has not been, 
and, in our judgment, cannot be successfully denied; and yet we 
are thus invited to hesitate in the enforcement of the mandate of 
the Constitution which prohibits Congress from laying a direct tax 
on the revenue from property of the citizen without regard to 
State lines, and in such manner that the States cannot intervene 
by payment in regulation of their own resources, lest a govern- 
ment of delegated powers should be found to be, not less powerful, 
but less absolute, than the imagination of the advocate had sup- 
posed. 

We are not here concerned with the question whether an income 
tax be or be not desirable, nor whether such a tax would enable 
the government to diminish taxes on consumption and duties on 
imports and to enter upon what may be believed to be a reform 
of its fiscal and commercial system. Questions of that character 
belong to the controversies of political parties, and cannot.be set- 
tled by judicial decision. In these cases our province is to deter- 
mine whether this income tax on the revenue from property does 
or does not belong to the class of direct taxes. If it does, it is, 
being unapportioned, in violation of the Constitution, and we 
must so declare. . . . 

We have considered the act only in respect of the tax on income 
7 



98 CASES ON CONSTITUTIONAL LAW. 

derived from real estate, and from invested 23ersonal property, and 
have not commented on so much of it as bears on gains or profits 
from business, privileges, or employments, in view of the instances 
in which taxation on business, privileges, or employments has as- 
sumed the guise of an excise tax and been sustained as such. 

Being of opinion that so much of the sections of this law as lays 
a tax on income from real and personal property is invalid, we are 
brought to the question of the effect of that conclusion upon these 
sections as a whole. 

It is elementary that the same statute may be in part constitu- 
tional and in part unconstitutional, and if the parts are wholly in- 
dependent of each other, that which is constitutional may stand 
while that which is unconstitutional will be rejected. And in the 
case before us there is no question as to the validity of this act, ex- 
cept sections twenty-seven to thirty-seven, inclusive, which relate 
to the subject which has been under discussion; and as to them 
we think that the rule laid down by Chief Justice Shaw in Warren 
V. Charlestown, 2 Gray, 84, is applicable, that if the different parts 
"are so mutually connected with and dependent on each other, as 
conditions, considerations, or compensations for each other, as to 
warrant the belief that the legislature intended them as a whole, 
and that, if all could not be carried into effect, the legislature 
would not pass the residue independently, and some parts are un- 
constitutional, all the provisions which are thus dependent, condi- 
tional or connected, must fall with them." Or, as the point is put 
by Mr. Justice Matthews in Poindexter v. Greenhow, 114 U. S., 
270, 304: "It is undoubtedly true that there may be cases where 
one part of a statute may be enforced as constitutional, and an- 
other be declared inoperative and void, because unconstitutional; 
but these are cases where the parts are so distinctly separable that 
each can stand alone, and where the court is able to see, and to 
declare, that the intention of the legislature was that the part 
pronounced valid should be enforcable, even though the other 
part should fail. To hold otherwise would be to substitute, for 
the law intended by the legislature, one they may never have been 
willing by itself to enact." And again, as stated by the same emi- 
nent judge in Spraigue v. Thompson, 118 U. S., 90, 95, where it 
was urged that certain illegal exceptions in a section of a statute 
might be disregarded, but that the rest could stand: "The insuper- 
able difficulty with the application of that principle of construction 
to the present instance is, that by rejecting the exceptions intended 
by the legislature of Georgia the statute is made to enact what 



POLLOCK V. FARMERS' LOAN AND TRUST CO. 99 

confessedly the legislature never meant. It confers upon the stat- 
ute a positive operation beyond the legislative intent, and beyond 
what any one can say it would have enacted in view of the illegality 
of the exceptions." 

According to the census, the true valuation of real and per- 
sonal property in the United States in 1890 was $.65,037,091,197, 
of which real estate with improvements thereon made up $39,- 
514:,5-41:,333. Of course, from the latter must be deducted, in ap- 
plying these sections, all unproductive property and all property 
whose net yield does not exceed four thousand dollars; but, even 
Avith such deductions, it is evident that the income from realty 
formed a vital part of the scheme for taxation embodied therein. 
If that be stricken out, and also the income from all invested 
personal property, bonds, stocks, investments of all kinds, it is 
obvious that by far the largest part of the anticipated revenue 
would be eliminated, and this would leave the burden of the tax 
to be borne by professions, trades, employments, or vocations; and 
in that way what was intended as a tax on capital would remain 
in substance a tax on occupations and labor. We cannot believe 
that such was the intention of Congress. We do not mean to say 
that such an act laying by apportionment a direct tax on all real 
estate and personal property, or the income thereof, might not 
also lay excise taxes on business, privileges, employments, and 
vocations. But this is not such an act; and the scheme must be 
considered as a whole. Being invalid as to the greater part, and 
falling, as the tax would, if any part were held valid, in a direction 
which could not have been contemplated except in connection 
with the taxation considered as an entirety, we are constrained to 
conclude that sections twenty-seven to thirty-seven, inclusive, of 
the act which became a law without the signature of the President 
on August 28, 1894, are wholly inoperative and void. 

Our conclusions may, therefore, be summed up as follows: 

First. We adhere to the opinion already announced, that, taxes 
on real estate being indisputably direct taxes, taxes on the rents 
or incomes of real estate are equally direct taxes. 

Second. We are of opinion that taxes on personal property, or 
on the income of personal property, are likewise direct taxes. 

Third. The tax imposed by sections twenty-seven to thirty- 
seven, inclusive, of the act of 1894, so far as it falls on the income 
of real estate and of personal property, being a direct tax within 
the meaning of the Constitution, and. therefore, unconstitutional 
and void because not apportioned according to representation, all 



100 CASES ON CONSTITUTIONAL LAW. 

those sections, constituting one entire scheme of taxation, are nec- 
essarily invalid. 

The decrees hereinhefore entered in this court ivill te vacated; 
the decrees heloio loill be reversed, and the cases remanded, loith 
instructions to grant the relief iwcnjed. 

[Dissenting opinions were delivered by Justices Haelan, 
Bkov^x, Jacksox, and White.] 



III. MONEY. 



CEAIG ET AL. v. THE STATE OF MISSOURI. 
4 Peters, 410. Decided 1830. 
The case is stated in the opinion of the court. . . . 

Marshall, C. J., delivered the opinion of the court, Justices 
Thompson, Johnson, and McLean dissenting. 

This is a writ of error to a judgment rendered in the court of 
last resort, in the State of Missouri, affirming a judgment ob- 
tained by the State in one of its inferior courts, against Hiram 
Craig and others, on a promissory note. . . . 

The declaration is on a promissory note, dated on the first day 
of August, 1832, promising to pay to the State of Missouri, on the 
1st day of November, 1822, at the loan office in Chariton, the sum 
of $199.99, and the two per cent, per annum, the interest ac- 
cruing on the certificates borrowed from the 1st of October, 1821. 
This note is obviously given for certificates loaned under the act, 
"for the establishment of loan offices." That act directs that loans 
on personal security shall be made of sums less than $200. This 
note is for $199.99. The act directs that the certificates issued by 
the State shall carry two per cent, interest from the date, which 
interest shall be calculated in the amount of the loan. The note 
promises to repay the sum with the two per cent, interest accruing 
on the certificates borrowed from the 1st day of October, 1821. 
It cannot be doubted that the declaration is on a note given in 
pursuance of the act which has been mentioned. 

Neither can it be doubted that the plea of non-assumpsit al- 
lowed the defendants to draw into question at the trial the validity 
of the consideration on which the note was given. Everything 
which disaffirms the contract, everything which shows it to be 
void, may be given in evidence on the general issue in an action of 
assumpsit. The defendants, therefore, were at liberty to question 
the validity of the consideration which was the foundation of the 
contract, and the constitutionality of the law in which it orig- 
inated. . . . 

101 



103 CASES ON CONSTITUTIONAL LAW. 

This brings us to the great question in the cause: Is the act of 
the legislature of Missouri repugnant to the constitution of the 
United States? 

The counsel for the plaintiffs in error maintain that it is re- 
pugnant to the constitution, because its object is the emission of 
bills of credit, contrary to the express prohibition contained in 
the tenth section of the first article. 

The act under the authority of which the certificates loaned to 
the plaintiffs in error were issued, was passed on the 26th of 
June, 1821, and is entitled "an act for the establishment of loan- 
offices." The provisions that are material to the present inquiry 
are comprehended in the third, thirteenth, fifteenth, sixteenth, 
twenty-third, and twenty-fourth sections of the act, which are in 
these words: 

Section the third enacts, "that the auditor of public accounts 
and treasurer, under the direction of the governor, shall, and they 
are hereby required to issue certificates,' signed by the said auditor 
and treasurer, to the amount of $200,000, of denominations not 
exceeding ten dollars, nor less than fifty cents, (to bear such devices 
as they may deem the most safe,) in the following form, to wit: — 
'This certificate shall be receivable at the treasury, or any of the 
loan-offices of the State of Missouri, in the discharge of taxes or 

debts due to the State, for the sum of $ , with interest for 

the same, at the rate of two per centum per annum from this date, 
the day of , 182—.' " 

The thirteenth section declares, "that the certificates of the 
said loan-offices shall be receivable at the treasury of the State, 
and by all tax-gatherers and other public officers, in payment of 
taxes or other moneys now due to the State, or to any county or 
town therein, and the said certificates shall also be received by all 
officers, civil and military, in the State, in the discharge of sala- 
ries and fees of office." 

The fifteenth section provides, "that the commissioners of the 
said loan-offices shall have power to make loans of the said cer- 
tificates, to citizens of this State, residing within their respective 
districts only, and in each district a proportion shall be loaned to 
the citizens of each county therein, according to the number 
thereof," &c. 

Section sixteenth. "That the said commissioners of each of 
the said offices are further authorized to make loans on personal 
securities, by them deemed good and sufficient, for sums less than 
two hundred dollars; which securities shall be jointly and sever- 



CRAIG ET AL. v. STATE OF MISSOURI. 103 

ally bound for the payment of the amount so loaned, with interest 
thereon/' &c. 

Section twenty-third. ''That the general assembly shall, as 
soon as may be, cause the salt springs and lands attached thereto, 
given by congress, to this State, to be leased out; and it shall 
always be the fundamental condition in such leases, that the lessee 
. or lessees shall receive the certificates hereby required to be issued, 
in payment for salt, at a price not exceeding that which may be 
prescribed by law; and all the proceeds of the said salt springs, the 
interest accruing to the State, and all estates purchased by officers 
of the said several offices, under the provisions of this act, and all 
the debts now due or hereafter to be due to this State, are hereby 
pledged and constituted a fund for the redemption of the certifi- 
cates hereby required to be issued, and the faith of the State is 
hereby also pledged for the same purpose." 

Section twenty-fourth. "That it shall be the duty of the said 
auditor and treasurer to withdraw annually from circulation, one- 
tenth part of the certificates which are hereby required to be 
issued," &c. 

The clause in the constitution which this act is supposed to 
violate is in these words: "No State shall . . . emit bills of 
credit." 

What is a bill of credit? What did the constitution mean to 
forbid ? 

In its enlarged, and perhaps its literal sense, the term "bill of 
credit" may comprehend any instrument by which a State engages 
to pay money at a future day; thus including a certificate given 
for money borrowed. But the language of the constitution itself, 
and the mischief to be prevented, which we know from the history 
of our country, eq.ually limits the interpretation of the terms. 
The word "emit" is never employed in describing those contracts 
by which a State binds itself to pay money at a future day for 
services actually received, or for money borrowed for present use; 
nor are instruments executed for such purposes, in common lan- 
guage, denominated "bills of credit." To "emit bills of credit," 
conveys to the mind the idea of issuing paper intended to circulate 
through the community for its ordinary purposes, as money, which 
paper is redeemable at a future day. This is the sense in which 
the terms have been always understood. 

At a very early period of our colonial history, the attempt to 
supply the want of the precious metals by a paper medium was 
made to a considerable extent; and the bills emitted for this pur- 
pose have been frequently denominated bills of credit. During 



104 CASES ON CONSTITUTIONAL LAW. 

the war of our Eevolution, we were driven to this expedient; and 
necessity compelled ns to use it to a most fearful extent. The 
term has acquired an appropriate meaning; and "bills of credit" 
signify a paper medium, intended to circulate between individuals^ 
and between government and individuals, for the ordinary pur- 
poses of society. Such a medium has been always liable to con- 
siderable fluctuation. Its value is continually changing; and these 
changes, often great and sudden, expose individuals to immense 
loss, are the sources of ruinous speculations, and destroy all confi- 
dence between man and man. To cut up this mischief by the 
roots, a mischief which was felt through the United States, and 
which deeply afEected the interest and prosperity of all, the people 
declared in their constitution, that no State should emit bills of 
credit. If the prohibition means anything, if the words are not 
empty sounds, it must comprehend the emission of any paper 
medium, by a State government, for the purpose of common cir- 
culation. 

"What is the character of the certificates issued by authority of 
the act under consideration? What office are they to perform? 
Certificates signed by the auditor and treasurer of the State, are 
to be issued by those officers to the amount of two hundred thou- 
sand dollars, of denominations not exceeding ten dollars, nor less 
than fifty cents. The paper purports on its face to be receivable 
at the treasury, or at any loan office of the State of Missouri, in 
discharge of taxes or debts due to the State. 

The law makes them receivable in discharge of all taxes, or 
debts due to the State, or any county or town therein; and of all 
salaries and fees of office, to all officers civil and military within 
the State; and for salt sold by the lessees of the public salt works. 
It also pledges the faith and funds of the State for their re- 
demption. 

It seems impossible to doubt the intention of the legislature in 
passing this act, or to mistake the character of these certificates, 
or the office they were to perform. The denominations of the bills, 
from ten dollars to fifty cents, fitted them for the purpose of or- 
dinary circulation; and their reception in payment of taxes, and 
debts to the government and to corporations, and of salaries and 
fees, would give them currency. They were to be put into circu- 
lation; that is, emitted by the government. In addition to all 
these evidences of an intention to make these certificates the or- 
dinary circulating medium of the country, the law speaks of them 
in this character; and directs the auditor and treasurer to with- 
draw annually one-tenth of them from circulation. Had they 



CRAIG ET AL. v. STATE OF MiasOUKl, 105 

been termed ''bills of credit," instead of "certificates," nothing 
would have been wanting to bring them within the prohibitory- 
words of the constitution. 

And can this make any real difference? Is the proposition to 
be maintained, that the constitution meant to prohibit names and 
not things? That a very important act, big with great and ruin- 
ous mischief, which is expressly forbidden by words most appropri- 
ate for its description, may be performed by the substitution of a 
name? That the constitution, in one of its most important pro- 
visions, may be openly evaded by giving a new name to an old 
thing? We cannot think so. We think the certificates emitted 
under the authority of this act are as entirely bills of credit as if 
they had been so denominated in the act itself. 

But it is contended, that though these certificates should be 
deemed bills of credit, according to the common acceptation of 
the term, they are not so in the sense of the constitution; because 
they are not made a legal tender. 

The constitution itself furnishes no countenance to this distinc- 
tion. The prohibition is general. It extends to all bills of credit, 
not to bills of a particular description. That tribunal must be 
bold, indeed, which, without the aid of other explanatory words, 
could venture on this construction. It is the less admissible in 
this case, because the same clause of the constitution contains a 
substantive prohibition to the enactment of tender laws. The 
constitution, therefore, considers the emission of bills of credit, 
and the enactment of tender laws, as distinct operations, inde- 
pendent of each other, which may be separately performed. Both 
are forbidden. To sustain the one, because it is not also the other; 
to say that bills of credit may be emitted, if 'they be not made a 
tender in payment of debts, — is, in effect, to expunge that distinct 
independent prohibition, and to read the clause as if it had been 
entirely omitted. We are not at liberty to do this. 

The history of paper money has been referred to, for the pur- 
pose of showing that its great mischief consists in being made a 
tender; and that therefore the general words of the constitution 
may be restrained to a particular intent. 

Was it even true, that the evils of paper money resulted solely 
from the quality of its being made a tender, this court would 
not feel itself authorized to disregard the plain meaning of words, 
in search of a conjectural intent to which we are not conducted 
by the language of any part of the instrument. But we do not 
think that the history of our country proves either, that being 
made a tender in payment of debts is an essential quality of bills 



106 CASES ON CONSTITUTIONAL LAW. 

of credit^ or the only mischief resulting from them. It may, 
indeed, be the most pernicious; but that will not authorize a 
court to convert a general into a particular prohibition. 

We learn from Hutchinson's History of Massachusetts, vol. i., 
p. 402, that bills of credit Avere emitted for the first time in that 
colony in 1690. An army returning unexpectedly from an expedi- 
tion against Canada, which had proved as disastrous as the plan 
was magnificent, found the government totally unprepared to 
meet their claims. Bills of credit were resorted to, for relief from 
this embarrassment. They do not appear to have been made a 
tender; but they were not on that account the less bills of credit, 
nor were they absolutely harmless. The emission, however, not 
being considerable, and the bills being soon redeemed, the experi- 
ment would have been productive of not much mischief, had it 
not been followed by repeated emissions to a much larger amount. 
The subsequent history of Massachusetts abounds with proofs of 
the evils with which paper money is fraught, whether it be or be 
not a legal tender. 

Paper money was also issued in other colonies, both in the Xorth 
and South and whether made a tender or not, was productive 
of evils in proportion to the quantity emitted. In the war which 
commenced in America in 1755, Yirginia issued paper money at 
several successive sessions, under the appellation of treasury notes. 
This was made a tender. Emissions were afterwards made in 1769, 
in 1771, and in 1773. These were not made a tender; but they 
circulated together; were equally bills of credit; and were pro- 
ductive of the same effects. In 1775 a considerable emission was 
made for the purposes of the war. The bills were declared to be 
current but were not made a tender. In 1776 an additional emis- 
sion was made, and the bills were declared to be a tender. The 
bills of 1775 and 1776 circulated together; were equally bills 
of credit; and were productive of the same consequences. 

Congress emitted bills of credit to a large amount; and did not, 
perhaps could not, make them a legal tender. Tliis power resided 
in the States. In Ma}-, 1777, the legislature of Yirginia passed 
an act for the first time making the bills of credit issued under 
the authority of congress a tender so far as to extinguish interest. 
It was not until March, 1781, that Virginia passed an act making 
all the bills of credit which had been emitted by congress, and all 
of which had been emitted by the State, a legal tender in payment 
of debts. Yet they were in every sense of the word bills of credit, 
previous to that time; and were productive of all the consequences 
of paper mone}^ We cannot then assent to the proposition, that 



CRAIG ET AL. v. STATE OF MISSOURI. 107 

the history of our country furnishes any just argument in favor 
of that restricted construction of the constitution, for which the 
counsel for the defendant in error contends. 

The certificates for which this note was given, being in trutli 
"bills of credit" in the sense of the constitution, we are brought 
to the inquiry: — Is the note valid of which they form the con- 
sideration ? 

It has been long settled, that a promise made in consideration 
of an act which is forbidden by law is void. It will not be ques- 
tioned, that an act forbidden by the constitution of the United 
States, which is the supreme law, is against law. Now the consti- 
tution forbids a State to "emit bills of credit." The loan of these 
certificates is the very act which is forbidden. It is not the mak- 
ing of them while they lie in the loan offices; but the issuing of 
them, the putting them into circulation, which is the act of 
emission, the act that is forbidden by the constitution. The con- 
sideration of this note is the emission of bills of credit by the 
State. The very act which constitutes the consideration, is the 
act of emitting bills of credit, in the mode prescribed by the law 
of Missouri; which act is prohibited by the constitution of the 
United States. 

Cases which we cannot distinguish from this in principle have 
been decided in state courts of great respectability; and in this 
court. . . . [Here follow statements of Springfield Bank v. 
Merrick et al., 14 Mass. Rep., 322; Hunt v. Knickerbocker, 5 
Johns., 327, and Patton v. Nicholson, 3 Wheaton, 204.] 

A majority of the court feels constrained to say that the consid- 
eration on which the note in this case was given, is against the 
highest law of the land, and that the note itself is utterly void. 
In rendering judgment for the plaintiff, the court for the State 
of Missouri decided in favor of the validity of a law which is 
repugnant to the constitution of the United States. 

In the argument, we have been reminded by one side of the 
dignity of a sovereign State, of the humiliation of her submitting 
herself to this tribunal, of the dangers which may result from 
inflicting a wound on that dignity; by the other, of the still 
superior dignity of the people of the United States, who have 
spoken their will in terms which we cannot misunderstand. 

To these admonitions, we can only answer: that if the exercise 
of that jurisdiction which has been imposed upon us by the con- 
stitution and laws of the United States, shall be calculated to bring 
on those dangers which have been indicated; or if it shall be in- 
dispensable to the preservation of the Union, and consequently 



108 CASES ON CONSTITUTIONAL LAW. 

of the independence and liberty of these States; these are con- 
siderations which address themselves to those departments which 
may with perfect propriety be influenced by them. This depart- 
ment can listen only to the mandates of law, and can tread only 
that path which is marked out by duty. 

The judgment of the Supreme Court of the State of* Missouri 
for the first judicial district is reversed, and the cause remanded, 
with directions to enter judgment for the defendants. 

[JrsTiCEs JoHXSox, Tho^ipsox, and McLeax delivered dis- 
senting opinions.] 



JOHK BEISCOE AND OTHEES v. THE PEESIDEXT AXD 

DIEECTOES OF THE BAXK OF THE COMMOX- 

WEALTH OF KEXTUCKY. 

11 Peters, 257. Decided 1837. 
The case is stated in the opinion of the court. . . . 

McLeax, J., delivered the opinion of the court. 

This case is brought before this court, by a writ of error from 
the court of appeals of the State of Kentucky, under the 25th 
section of the Judiciary act of 1T89.^ 

An action was commenced by the Bank of the Commonwealth 
of Kentucky, against the plaintiffs in error, in the Mercer 
Circuit Court of Kentucky, on a note for $2,048.37, payable 
to the president and directors of the bank; and the defendants 
filed two special pleas, in the first of which oyer was prayed of 
the note on which suit was brought, and they say that the plaint- 
iff ought not to have, &c., because the note was given on the 
renewal of a like note, given to the said bank; and they refer 
to the act establishing the bank, and allege that it never received 
any part of the capital stock specified in the act; that the bank 
was authorized to issue bills of credit, on the faith of the State, 
in violation of the constitution of the United States. That, by 
various statutes, the notes issued were made receivable in dis- 
charge of executions, and if not so received, the collection of the 
money should be delayed, &c.; and the defendants aver that the 
note was given to the bank on a loan of its bills, and that the 
consideration, being illegal, was void. 

1 1 Stat, at Large, 85. 



BRISCOE ET AL. v. BANK OF KENTUCKY. 109 

The second plea presents, substantially, the same facts. To 
both the pleas a general demurrer was filed; and the court sus- 
tained the demurrer, and gave judgment in favor of the bank. 
This judgment was removed, by appeal, to the court of appeals, 
which is the highest court of judicature in the State, where the 
judgment of the circuit court was affirmed; and being brought 
before this court" by writ of error, the question is presented whether 
the notes issued by the bank are bills of credit, emitted by the 
State, in violation of the constitution of the United States. 

This cause is approached, under a full sense of its magnitude. 
Important as have been the great questions brought before this 
tribunal for investigation and decision, none have exceeded, if they 
have equaled, the importance of that which arises in this case. 
The amount of property involved in the principle is very large; 
but this amount, however great, could not give to the case the 
deep interest which is connected with its political aspect. . . 

The definition of the terms bills of credit, as used in the con- 
stitution, is the first requisite in the investigation of this subject. 
. . . The terms bills of credit in their mercantile sense, com- 
prehend a great variety of evidence of debt, which circulate in 
a commercial country. In the early history of banks, it seems 
their notes were generally denominated bills of credit; but in 
modern times they have lost that designation; and are now called, 
either bank bills, or bank notes. 

But the inhibition of the constitution applies to bills of credit, 
in a more limited sense. 

It would be difficult to classify the bills of credit which were 
issued in the early history of this country. They were all designed 
to circulate as money, being issued under the laws of the respective 
colonies, but the forms were various in the different colonies, and 
often in the same colony. 

In some cases they were payable with interest, in others with- 
out interest. Funds arising from certain sources of taxation were 
pledged for their redemption, in some instances; in others they 
were issued without such a pledge. They were sometimes made 
a legal tender, at others not. In some instances, a refusal to receive 
them operated as a discharge of the debt; in others, a postpone- 
ment of it. 

They were sometimes payable on demand; at other times, at 
some future period. At all times the bills were receivable for 
taxes, and in payment of debts due to the public; except, perhaps, 
in some instances, where they had become so depreciated as to be of 
little or no value. 



110 CASES ON CONSTITUTIONAL LAW. 

These bills were frequently issued by committees, and sometimes 
by an officer of the government, or an individual designated for 
that purpose. 

The bills of credit emitted by the States, during the Revolution, 
and prior to the adoption of the constitution, were not very dis- 
similar from those which the colonies had been in the practice of 
issuing. There were some characteristics which were common to 
all these bills. They were issued by the colony or State, and on 
its credit. For in cases where funds were pledged, the bills were 
to be redeemed at a future period, and gradually as the means 
of redemption should accumulate. In some instances, congress 
guaranteed the payment of bills emitted by a State. 

They were, perhaps, never convertible into gold and silver, im- 
mediately on their emission; as they were issued to supply the 
pressing pecuniary wants of the government, their circulating as 
money was indisj)ensable. The necessity which required their 
emission precluded the possibility of their immediate redemption. 

In the case of Craig et al. v. The State of Missouri, 4 Peters, 
410, this court was called ujDon, for the first time, to determine 
what constituted a bill of credit, within the meaning of the Con- 
stitution. A majority of the judges in that case, in the language 
of the Chief Justice, say, that "bills of credit signify a paper 
medium, intended to circulate between individuals, and between 
government and individuals, for the ordinary purposes of society." 

A definition so general as this would certainly embrace every 
description of paper which circulates as money. 

Two of the dissenting judges, on that occasion, gave a more defi- 
nite, though, perhaps, a less accurate meaning, of the terms bills 
of credit. 

By one of them it was said, "a bill of credit may, therefore, 
be considered a bill drawn and resting merely on the credit of the 
drawer, as contradistinguished from a fund constituted or pledged 
for the payment of the bill." And in the opinion of the other, 
it is said, "to constitute a bill of credit, within the meaning of 
the constitution, it must be issued by a State, and its circulation, 
as money, enforced by statutory provisions. It must contain a 
promise of pa}Tnent by the State generally, when no fund has been 
appropriated to enable the holder to convert it into money. It 
must be circulated on the credit of the State; not that it will be 
paid on presentation, but that the State, at some future period, 
on a time fixed or resting in its own discretion, will provide for 
the payment." 

These definitions cover a lare-e class of the bills of credit issued 



BRISCOE ET AL. v. BANK OF KENTUCKY. Ill 

and circulated as money, but there are classes which they do not 
embrace; and it is believed that no definition, short of a descrip- 
tion of each class, would be entirely free from objection; unless 
it be in the general terms used by the venerable and lamented 
chief justice. 

The definition, then, which doee include all classes of bills of 
credit emitted by the colonies or States, is a paper issued by the 
sovereign power, containing a pledge of its faith, and designed to 
circulate as money. 

Having arrived at this point, the next inquiry in the case is 
whether the notes of the Bank of the Commonwealth were bills 
of credit within the meaning of the constitution. 

The first section of the charter provides, that the bank shall 
be established in the name and behalf of the commonwealth of 
Kentucky, under the direction of a president and twelve directors 
to be chosen by joint ballot of both houses of the general assembly, 
&c. . . . [The second section provides for the incorporation 
of these persons with the usual powers.] In the third section it is 
declared, that the stock of the bank shall be exclusively the prop- 
erty of the commonwealth of Kentucky, and that no individual 
shall own any part of it. The fourth section authorizes the presi- 
dent and directors to issue notes, &c.; and in the fifth section it 
is declared, that the capital stock shall be $2,000,000, to be paid 
as follows: "All moneys hereafter paid into the treasury for the 
purchase of the vacant land of the commonwealth; all moneys 
paid into the treasury for the purchase of land wai rants; all 
moneys received for the sale of vacant lands west of the Tennes- 
see Eiver, and so much of the capital stock owned by the State in 
the Bank of Kentucky;" and as the treasurer of the State re- 
ceived these moneys from time to time, he was required to pay 
the same into the bank. . . . Certain limitations were im- 
posed on loans to individuals, and the accommodations of the bank 
were to be apportioned among the different counties of the State. 
The president was required to make a report to each session of 
the legislature. The notes were to be made payable in gold and 
silver, and were receivable in payment of taxes and other debts 
due to the State. All mortgages executed to the bank, gave to it 
a priority. By a supplementary act it was provided that the presi- 
dent and directors might issue $3,000,000. In 1821, an act was 
passed authorizing the treasurer of the State to receive the divi- 
dends of the bank. 

The notes issued by the bank were in the usual form of bank 
notes, in which the Bank of the Commonwealth promised to pay 



112 CASES ON CONSTITUTIONAL LAW. 

to the bearer on demand the sum specified on the face of the note. 

There is no evidence of any part of the capital having been 
paid into the bank; and as the pleas, to which the demurrers were 
filed, aver that no part of the capital was paid, the fact averred 
is admitted on the record. 

It is to be regretted that any technical point arising on the 
pleadings should be relied on in this case, which involves princi- 
ples and interests of such deep importance. Had the bank pleaded 
over and stated the amount actually paid into it by the State, 
under the charter, the ground on which it stands would have been 
strengthened. . . . 

On the part of the plaintifl:s in error, it is contended, that the 
provisions in the constitution that "no State shall coin money," 
"emit bills of credit," or "make anything but gold and silver coin 
a tender in payment of debts," are three distinct powers which 
are inhibited to the State; and that if the bills of the Bank of 
the Commonwealth were substantially made a tender, by an act 
of the legislature of Kentucky, it must be fatal to the action 
of the bank in this- case. . . . 

But the main grounds on which the counsel for the plaintiffs 
rely is that the Bank of the Commonwealth, in emitting the bills 
in question^ acted as the agent of the State; and that, conse- 
quently, the bills were issued by the State. That, as a State 
is prohibited from issuing bills of credit, it cannot do indirectly 
what it is prohibited from doing directly. That the constitution 
intended to place the regulation of the currency under the control 
of the federal government; and that the act of Kentucky is not 
only in violation of the spirit of the constitution, but repugnant 
to its letter. These topics have been ably discussed at the bar and 
in a printed argument on behalf of the plaintiffs. 

That by the constitution the currency, so far as it is com- 
posed of gold and silver, is placed under the exclusive control of 
congress is clear; and it is contended from the inhibition on the 
States to emit bills of credit, that the paper medium was intended 
to be made subject to the same power. If this argument be cor- 
rect, and the position that a State cannot do indirectly what it is 
prohibited from doing directly be a, sound one, then it must fol- 
low, as a necessary consequence, that all banks incorporated by 
a State are unconstitutional. And this, in the printed argument, 
is earnestly maintained, though it is admitted not to be neces- 
sary to sustain the ground assumed for the plaintiffs. The coun- 
sel of the plaintiffs, who have argued the case at the bar, do not 
carry the argument to this extent. 



BRISCOE ET AL. v. BANK OF KENTUCKY. 113 

This doctrine is startling, as it strikes a fatal blow against the 
State banks, which have a capital of near four hundred millions 
of dollars, and which supply almost the entire circulating medium 
of the country. But let us for a moment examine it dispassion- 
ately. 

The federal government is one of delegated powers. All powers 
not delegated to it, or inhibited to the States, are reserved to the 
States or to the people. A State cannot emit bills of credit; or, 
in other words, it cannot issue that description of paper to answer 
the purposes of money, which was denominated, before the adop- 
tion of the constitution, bills of credit. But a State may grant 
acts of incorporation for the attainment of those objects which are 
essential to the interests of society. This power is incident to 
sovereignty; and there is no limitation in the federal constitution 
on its exercise by the States, in respect to the incorporation of 
banks. 

At the time the constitution was adopted, the Bank of North 
America, and the Massachusetts Bank, and some others, were in 
operation. It cannot, therefore, be supposed that th-e notes of these 
banks were intended to be inhibited by the constitution, or that 
they were considered as bills of credit within the meaning of that 
instrument. In fact, in many of their most distinguishing char- 
acteristics, they were essentially different from bills of credit, in 
any of the various forms in which they were issued. 

If, then, the powers not delegated to the federal government, 
nor denied to the States, are retained by the States or the people, 
and by a fair construction of the terms bills of credit, as used 
in the constitution, they do not include ordinary bank notes, does 
it not follow that the power to incorporate banks to issue these 
notes may be exercised by a State? A uniform course of action, 
involving the right to the exercise of an important power by the 
State governments for half a century, and this almost without 
question, is no unsatisfactoiy evidence that the power is rightfully 
exercised. But this inquiry, though embraced in the printed 
argument, does not belong to the case, and is abandoned at the 
bar. 

A State cannot do that which the federal constitution declares 
it shall not do. It cannot coin money. Here is an act inhibited 
in terms so precise that they cannot be mistaken. They are sus- 
ceptible of but one construction. And it is certain that a State 
cannot incorporate any number of individuals, and authorize them 
to coin money. Such an act would be as much a violation of the 
constitution as if the money were coined by an officer of the State, 
8 



114 CASES ON CONSTITUTIONAL LAW. 

under its authority. The act, being prohibited, cannot be done 
by a State either directly or indirectly. 

And the same rule applies as to the emission of bills of credit 
by a State. The terms used here are less specific than those which 
relate to coinage. Wliilst no one can mistake the latter, there are 
great differences of opinion as to the construction of the former. 
If the terms in each case were equally definite and were susceptible 
of but one construction, there could be no more difiiculty in 
applying the rule in the one case than in the other. 

The weight of the argument is admitted, that a State cannot, 
by any device that may be adopted, emit bills of credit. But the 
question arises, what is a bill of credit within the meaning of the 
constitution? On the answer to this must depend the constitu- 
tionality or unconstitutionality of the act in question. 

A State can act only through its agents; and it would be absurd 
to say that any act was not done by a State which was done by its 
authorized agents. 

To constitute a bill of credit within the constitution, it must 
be issued by a State, on the faith of the State, and be designed 
to circulate as money. It must be a paper which circulates on 
the credit of the State; and is so received and used in the ordi- 
nary business of life. 

The individual or committee who issue the bill must have the 
power to bind the State; the}^ must act as agents; and of course 
do not incur any personal responsibility, nor impart, as individ- 
uals, any credit to the paper. These are the leading characteris- 
tics of a bill of credit, which a State cannot emit. . . . 

"Were these notes issued by the State? 

Upon their face, they do not purport to be issued by the State, 
but by the president and directors of the bank. They promise to 
pay to bearer on demand the sums stated. Were they issued on 
the faith of the State? The notes contain no pledge of the faith 
of the State in any form. They purport to Have been issued on tlie 
credit of the funds of the bank, and must have been so received in 
the community. 

But these funds, it is said, belonged to the State; and the prom- 
ise to pay on the face of the notes was made by the president and 
directors as agents of the State. They do not assume to act as 
agents, and there is no law which authorizes them to bind the 
State. As in, perhaps, all bank charters, they had the power to 
issue a certain amount of notes; but they determined the time 
and circumstances which should regulate these issues. 

Wlien a State emits bills of credit, the amount to be issued is 



BRISCOE ET AL. v. BANK OF KENTUCKY. 115 

fixed by law, as also for the fund out of which they arc to be paid, if 
any fund be pledged for their redemption; and they are issued on 
the credit of the State, which in some form appears upon the face 
of the notes, or by the signature of the person who issues them. 

As to the funds of the Bank of the Commonwealth, they were, 
in part only, derived from the State. The capital, it is true, was 
to be paid by the State; but in making loans, the bank was re- 
quired to take good securities; and these constituted a fund, to 
which the holders of the notes could look for payment_, and which 
could be made legally responsible. 

In this respect the notes of this bank were essentially different 
from any class of bills of credit which are believed to have been 
issued. 

The notes were not payable in gold and silver on demand, but 
there was a fund, and, in all probability, a sufficient fund, to 
redeem them. This fund was in possession of the bank, and under 
the control of the president and directors. But whether the fund 
was adequate to the redemption of the notes issued or not, is im- 
material to the present inquiry. It is enough that the fund ex- 
isted, independent of the State, and was sufficient to give some 
degree of credit to the paper of the bank. 

The question is not whether the Bank of the Commonwealth had 
a large capital or a small one, or whether its notes were in good 
credit or bad, but whether they were issued by the State, and 
on the faith and credit of the State. The notes were received 
in payment of taxes, and in discharge of all debts to the State; 
and this, aided by the fund arising from notes discounted, with 
prudent management, under favorable circumstances, might have 
sustained, and it is believed did sustain to a considerable extent, 
the credit of the bank. The notes of this bank which are still 
in circulation are equal in value, it is said, to specie. 

But there is another quality which distinguished these notes 
from bills of credit. Every holder of them could not only look 
to the funds of the bank for payment, but he had in his power 
the means of enforcing it. 

The bank could be sued; and the records of this court show 
that while its paper was depreciated, a suit was prosecuted to 
judgment against it by a depositor, and who obtained from the 
bank, it is admitted, the full amount of his judgment in specie. 
. . . [Here follows a description of bills issued by Maryland 
and South Carolina.] 

If the leading properties of the notes of the Bank of the Com- 
monwealth were essentially diiTerent from any of the numerous 



116 CASES ON CONSTITUTIONAL LAW. 

classes of bills of credit^ issued by tlie States or colonies; if they 
vere not emitted by the State, nor upon its credit, but on the 
credit of the funds of the bank; if they were payable in gold 
and silver on demand, and the holder could sue the bank; and if 
to constitute a bill of credit, it must be issued by a State, and on 
the credit of the State, and the holder could not, by legal means, 
compel the payment of the bill, how can the character of these 
two descriptions of paper be considered as identical? They were 
both circulated as money; but in name, in form, and in sub- 
stance, they differ. 

It is insisted that the principles of this case were settled in 
the suit of Craig et al. v. The State of Missouri. . . . 

In that case the court decided that the following paper, issued 
under a legislative act of Missouri, was a bill of credit within the 
meaning of the constitution: — 

"This eertiiicate shall be receivable at the treasury, or any of 
the loan offices of the State of Missouri, in the discharge of taxes 
or debts due to the States, in the sum of dollars, with 

interest for the same, at the rate of two per cent, per annum 
from the date." . . . 

It is only necessary to compare these certificates with the notes 
issued by the Bank of the Commonwealth to see that no two 
things which have any property in common could be more unlike. 
They both circulated as money, and were receivable on public 
account; but in every other particular they were essentially dif- 
ferent. 

If to constitute a bill of credit either the form or substance 
of the Missouri certificate is requisite, it is clear that the notes 
of the Bank of the Commonwealth cannot be called bills of credit. 
To include both paj^ers under one designation would confound the 
most important distinctions, not only as to their form and sub- 
stance, but also as to their origin and effect. 

There is no principle decided by the court in the case of Craig 
V. The State of Missouri which at all confiicts with the views here 
presented. Indeed the views of the court are sustained and 
strengthened by contrasting the present case with that one. The 
State of Kentucky is the exclusive stockholder in the Bank of 
the Commonwealth: but does this fact change the character of 
the corjDoration? Does it make the bank identical with the State? 
And are the operations of the bank the operations of the State? 
Is the bank the mere instrument of the sovereignty to effectuate 
its designs; and is the State responsible for its acts? The answer 
to these inquiries will be given in the language of this court, used 



BRISCOE ET AL. v. BANK OF KENTUCKY. 117 

in former adjudications. . . . [Here follow extracts from 
Bank of the United States v. The Planters' Bank, 9 Wheat., 904, 
and Bank of the Commonwealth of Kentucky v. Wistar, 3 Peters, 
431.] 

These extracts cover almost every material point raised in this 
investigation. They show that a State, when it becomes a stock- 
holder in a bank, imparts none of its attributes of sovereignty 
to the institution; and that this is equally the ease, whether 
it own a whole or a part of the stock of the bank. 

It is admitted by the counsel for the plaintiffs that a State may 
become a stockholder in a bank; but they contend that it cannot 
become the exclusive owner of the stock. They give no rule by 
which the interest of a State in such an institution shall be grad- 
uated, nor at what point the exact limit shall be fixed. May a 
State own one-fourth, one-half, or three-fourths of the stock? If 
the proper limit be exceeded, does the charter become unconsti- 
tutional; and is its constitutionality restored if the State recede 
within the limit? The court are as much at a loss to fix the 
supposed constitutional boundary of this right as the counsel can 
possibly be. 

If the State must stop short of owning the entire stock, the 
precise point may surely be ascertained. It cannot be supposed 
that so important a constitutional principle as contended for exists 
without limitation. If a State may own a part of the stock of a 
bank, we know of no principle which prevents it from owning the 
whole. As a stockholder, in the language of this court, above 
cited, it can exercise no more power in the affairs of the corpora- 
tion than is expressly given by the incorporating act. It has no 
more power than any other stockholder to the same extent. 

This court did not consider that the character of the incorpora- 
tion was at all affected by the exclusive ownership of the stock by 
the State. And they say that the case of the Planters' Bank pre- 
sented stronger ground of defense than the suit against the Bank 
of the Commonwealth. That in the former the State of Georgia 
was not only a proprietor but a corporator; and that in the latter 
the president and directors constituted the corporate body. And 
yet in the case of the Planters' Bank the court decided the State 
could only be considered as an ordinary corporator, both as it 
regarded its powers and responsibilities. 

If these positions be correct, is there not an end to this con- 
troversy? If the Bank of the Commonwealth is not the State, 
nor the agent of the State; if it possess no more power than is 
given to it in the act of incorporation; and precisely the same as 



118 CASES ON CONSTITUTIONAL LAW. 

if the stock were owned by j)rivate individuals^ how can it be con- 
tended that the notes of the bank can be called bills of credit in 
contradistinction from the notes of other banks? If, in becom- 
ing an exclusive stocldiolder in this bank the State imparts to it 
none of its attributes of sovereignty; if it holds the stock as any 
other stockliolder would hold it, how can it be said to emit bills 
of credit? Is it not essential to constitute a bill of credit within 
the constitution that it should be emitted by a State? Under its 
charter the bank has no power to emit bills which have the impress 
of the sovereignty or which contain a pledge of its faith. It is a 
simple corjjoration, acting within the sphere of its corporate 
powers, and can no more transcend them than any other banking 
institution. The State, as a stockholder, bears the same relation 
to the bank as any other stockholder. 

The funds of the bank and its property, of every description, are 
held responsible for the pajinent of its debts, and may be reached 
l)j legal or equitable process. In this respect, it can claim no 
exemption under the prerogatives of the States. And, if in the 
course of its operations its notes have depreciated like the notes 
of other banks under the pressure of circumstances, still it must 
stand or fall by its charter. In this its powers are defined; and 
its rights, and the rights of those who give credit to it, are guar- 
anteed. And even an abuse of its powers, through which its 
credit has been impaired and the community injured, cannot 
be considered in this case. 

We are of the opinion that the act incorporating the Bank 
of the Commonwealth was a constitutional exercise of power by 
the State of Kentucky, and, consequently, that the nates issued 
by the bank are not bills of credit within the meaning of the 
federal constitution. The judgment of the court of appeals is, 
therefore, affirmed, with interest and costs. . . . 

[Me. Justice Thompsox delivered a concurring opinion, and 
Me. Justice Stoey a dissenting one.] 



hepbue:^! v. griswold. 

8 Wallace, 603. Decided 1870. 

Error to the Court of Appeals of Kentucky, the case being this: 

On the 20th of June, 1860, a certain Mrs. Hepburn made a 
promissorj^ note, by which she promised to pay to Henry Gris- 



HEPBURN V. GRISWOLD, 119 

wold on the 20th of February, 1863, eleven thousand two hun- 
dred and fifty "dollars." 

At the time when the note was made, as also at the time when 
it fell due, there was, confessedly, no lawful money of the United 
States, or money which could lawfully be tendered in payment 
of private debts, but gold and silver coin. 

Five days after the day when the note by its terms fell due, that 
is to say, on the 25th of February, 1862, in an exigent crisis of 
the nation, in which the government was engaged in putting 
down an armed rebellion of vast magnitude. Congress passed an 
act authorizing the issue of $150,000,000 of its own notes,^ and 
enacted in regard to them, by one clause in the first section of 
the act, as follows: 

"And such notes, herein authorized, shall be receivable in pay- 
ment of all taxes, internal duties, excises, debts, and demands of 
every kind due to the United States, except duties on imports, 
and of all claims and demands against the United States of every 
kind whatsoever, except for interest upon bonds and notes, which 
shall be paid in coin; and shall also be lawful money and a legal 
tender in payment of all debts, public and private, within the 
United States, except duties on imports and interest as aforesaid." 

The note given by Mrs. Hepburn not being paid at maturity, 
interest accrued on it. And in March, 186-4, suit having been 
brought on the note in the Louisville Chancery Court, she ten- 
dered in United States notes issued under the act mentioned 
$12,720, the amount of principal of the note with the interest 
accrued to the date of tender, and some costs in satisfaction of 
the plaintiff's claim. The tender was refused. The notes were 
then tendered and paid into court; and the chancellor, "resolv- 
ing all doubts in favor of Congress," declared the tender good and 
adjudged the debt, interest and costs to be satisfied accordingly. 

The case was then taken by Griswold to the Court of Errors of 
Kentucky, which reversed the chancellor's judgment, and remand- 
ed the case with instructions to enter a contrary judgment. 

From the judgment of the Court of Errors of Kentucky, the 
case was brought by Mrs. Hepburn here. . . . 

The Chief Justice delivered the opinion of the court. 

The question presented for our determination by the record 
in this case is, whether or not the payee or assignee of a note, 
made before the 25th of February, 1862, is obliged by law to 

1 For the general form of the notes, see 7 Walla'ce, 26. 



120 CASES ON CONSTITUTIONAL LAW. 

accept in pajTnent United States note?, equal in nominal amount 
to the sum due according to its terms, when tendered by the 
maker or other party bound to pay it? And this requires, in the 
iirs-t place, a construction of that clause of the first section 
of the act of Congress passed on that day, which declares 
the ITnited States notes, the issue of vrhich was authorized by the 
statute, to be a legal tender in payment of debts. The clause has 
already received much consideration here, and this court has 
held that, upon a sound construction, neither taxes imposed by 
State legislation,- nor demands upon contracts which stipulate 
in terms for the deliyery of coin or bullion,^ are included by legis- 
lative intention under the description of debts public and private. 
We aie now to determine whether this description embraces debts 
contracted before as well as after the date of the act. 

It is an established rule for the construction of statutes, that 
the terms employed by the legislature are not to receive an inter- 
pretation which conflicts with acknowledged principles of justice 
and equity, if another sense, consonant with those principles, can 
be given to them. But this rule cannot prevail where the intent 
is clear. Except in the scarcely supposable case where a statute 
sets at naught the plainest precepts of morality and social obliga- 
tion, courts must give effect to the clearly ascertained legislative 
intent, if not repugnant to the fundamental law ordained in the 
Constitution. 

Applying the rule just stated to the act under consideration, 
there appears to be strong reason for construing the word debts 
as having reference only to debts contracted subsequent to the 
enactment of the law. For no one will question that the United 
States notes, which the act makes a legal tender in payment, are 
essentially unlike in nature, and, being irredeemable in coin, are 
necessarily unlike in value, to the lawful money intended by par- 
ties to contracts for the pa}'ment of money made before its pas- 
sage. The lawful money then in use and made a legal tender in 
payment, consisted of gold and silver coin. The currency in use 
under the act, and declared by its terms to be lawful money and 
a legal tender, consists of notes or promises to pay impressed upon 
paper, prepared in convenient form for circulation, and protected 
against counterfeiting by suitable devices and penalties. The 
former possess intrinsic value, determined b}' the weight and 
fineness of the metal; the latter have no intrinsic value, but a 
purchasing value, determined by the quantity in circulation, by 

2 Lane County V. Oregon, 7 Wal- ■'' Bronson v. Rodes, 7 Id., 229; 

iace, 71. Butler v. Horwitz, lb., 258. 



HEPBURN V. GRISWOLD. 121 

general consent to its currency in payments, and by opinion as to 
the probability of redemption in coin. Both derive, in different 
degrees, a certain additional vahie from their adaptation to cir- 
culation by the form and impress given to them under national 
authority, and from the acts making them respectively a legal 
tender. 

Contracts for the payment of money, made before the act of 
1862, had reference to coined money, and could not be discharged, 
unless by consent, otherwise than by tender of the sum due in 
coin. Every such contract, therefore, was, in legal import, a con- 
tract for the payment of coin. 

There is a well-known law of currency, that notes or promises 
to pay, unless made conveniently and promptly convertible into 
coin at the will of the holder, can never, except under unusual 
and abnormal conditions, be at par in circulation with coin. It, 
is an equally well known law, that depreciation of notes must in- 
crease with the increase of the quantity put in circulation and the 
diminution of confidence in the ability or disposition to redeem. 
Their appreciation follows the reversal of these conditions. Xo 
act making them a legal tender can change materially the opera- 
tion of these laws. Their force has been strikingly exemplified 
in the history of the United States notes. Beginning with a very 
slight depreciation when first issued, in March, 1862, they sank 
in July, 1861:, to the rate of two dollars and eighty-five cents for 
a dollar in gold, and then rose until recently a dollar and twenty 
cents in paper became equal to a gold dollar. 

Admitting, then, that prior contracts are within the intention 
of the act, and assuming that the act is warranted by the Con- 
stitution, it follows that the holder of a promissory note, made be- 
fore the act, for a thousand dollars, payable, as we have just seen, 
according to the law and according to the intent of the parties, in 
coin, was required, when depreciation reached its lowest point, 
to accept in payment a thousand note dollars, although with the 
thousand coin dollars, due under the contract, he could have pur- 
chased on that day two thousand eight hundred and fifty such 
dollars. Every payment, since the passage of the act, of a note 
of earlier date, has presented similar, though less striking features. 

Now, it certainly needs no argument to prove that an act, com- 
pelling acceptance in satisfaction of any other than stipulated pay- 
ment, alters arbitrarily the terms of the contract, and impairs its 
obligation, and that the extent of impairment is in the proportion 
of the inequality of the payment accepted under the constraint 
of the law to the payment due under the contract. Nor does it 



122 CASES ON CONSTITUTIONAL LAW. 

need argument to prove that the practical operation of such an 
act is contrary to justice and equity. It follows that no construc- 
tion which attributes such practical operation to an act of Congress 
is to be favored, or indeed to be admitted, if any other can be 
reconciled with the manifest intent of the legislature. 

What, then, is that manifest intent? Are we at liberty, upon 
a fair and reasonable construction of the act, to say that Con- 
gress meant that the word "debts" used in the act should not in- 
clude debts contracted prior to its passage? 

In the case of Bronson v. Eodes, we thought ourselves war- 
ranted in holding that this word, as used in the statute, does not 
include obligations created by express contracts for the payment 
of gold and silver, whether coined or in bullion. This conclusion 
rested, however, mainly on the terms of the act, which not only 
allow, but require payments in coin by or to the government, and 
may be fairly considered, independently of considerations belonging 
to the law of contracts for the delivery of specified articles, as sanc- 
tioning special private contracts for like payments; without which, 
indeed, the provisions relating to government payments could 
hardly have practical effect. This consideration, however, does 
not apply to the matter now before us. There is nothing in the 
terms of the act which looks to any difference in its operation on 
different descriptions of debts payable generally in money, — that 
is to say, in dollars and parts of a dollar. These terms, on the 
contrary, in their obvious import, include equally all debts not 
specially expressed to be payable in gold or silver, whether arising 
under past contracts and already due, or arising under such con- 
tracts and to become due at a future day, or arising and becoming 
due under subsequent contracts. A strict and literal construc- 
tion indeed would, as suggested by Mr. Justice Story (1 Story on 
the Constitution, § 921), in respect to the same word used in the 
Constitution, limit the word "debts" to debts existing; and if this 
construction cannot be accepted because the limitation sanctioned 
by it cannot be reconciled with the obvious scope and purpose 
of the act, it is certainly conclusive against any interpretation 
which will exclude existing debts from its operation. The same 
conclusion results from the exception of interest on loans and 
duties on imports from the effect of the legal tender clause. This 
exception affords an irresistible implication that no description 
of debts, whenever contracted, can be withdrawn from the effect 
of the act if not included within the terms or the reasonable in- 
tent of the exception. And it is worthy of observation in this con- 
nection, that in all the debates to which the act gave occasion in 



HEPBURN V. GRISWOLD. 123 

Congress, no suggestion was ever made that the legal tender clanse 
did not apply as fully to contracts made before as to contracts 
made after its passage. 

These considerations seem to us conclusive. "We do not think 
ourselves at liberty, therefore, to say that Congress did not intend 
to make the notes authorized by it a legal tender in payment of 
debts contracted before the passage of the act. 

We are thus brought to the question, whether Congress has 
power to make notes issued under its authority a legal tender in 
payment of debts, which, when contracted, were payable by law 
in gold and silver coin. 

The delicacy and importance of this question has not been over- 
stated in the argument. This court always approaches the con- 
sideration of questions of this nature reluctantly; and its constant 
rule of decision has been, and is, that acts of Congress must be 
regarded as constitutional, unless clearly shown to be otherwise. 

But the Constitution is the fundamental law of the United 
States. By it the people have created a government, defined its 
powers, prescribed their limits, distributed them among the dif- 
ferent departments, and directed, in general, the manner of their 
exercise. No department of the government has any other powers 
than those thus delegated to it by the people. All the legislative 
power granted by the Constitution belongs to Congress; but it has 
no legislative power which is not thus granted. And the same ob- 
servation is equally true in its application to the executive and 
judicial powers granted respectively to the President and the 
courts. All these powers differ in kind, but not in source or in 
limitation. They all arise from the Constitution, and are limited 
by its terms. 

It is the function of the judiciary to interpret and apply the 
law to cases between parties as they arise for judgment. It can 
only declare what the law is, and enforce by proper process the 
law thus declared. But, in ascertaining the respective rights of 
parties, it frequently becomes necessary to consult the Consti- 
tution. For there can be no law inconsistent with the funda- 
mental law. No enactment not in pursuance of the authority 
conferred by it can create obligations or confer rights. For such 
is the express declaration of the Constitution itself in these words: 

"The Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or which 
shall be made under the authority of the United States, shall be 
the supreme law of the land; and the judges of every State shall 



124 CASES ON CONSTITUTIONAL LAW. 

be bound thereby, anything in the Constitution or lavs of any 
State to the contrary notwithstanding." 

jSTot every act of Congress, then, is to be regarded as the su- 
preme law of the land; nor is it by every act of Congress that the 
judges are bound. This character and this force belong only to 
such acts as are "made in pursuance of the Constitution." 

"When, therefore, a case arises for judicial determination, and 
the decision depends on the alleged inconsistency of a legislative 
provision with the fundamental law, it is the plain duty of the 
court to compare the act with the Constitution, and if the former 
cannot, upon a fair construction, be reconciled with the latter, 
to give effect to the Constitution rather than the statute. This 
seems so plain that it is impossible to make it plainer by argu- 
ment. If it be otherwise, the Constitution is not the supreme law; 
it is neither necessary or useful, in any case, to inquire whether 
or not any act of Congress was passed in pursuance of it; and the 
oath which every member of this court is required to take, that 
he "will administer justice without respect to persons, and do equal 
right to the poor and the rich, and faithfully perform the duties 
incumbent upon him to the best of his ability and understanding, 
agreeably to the Constitution and laws of the United States," be- 
comes an idle and unmeaning form. 

The case before us is one of private right. The plaintiff in the 
court below sought to recover of the defendants a certain sum 
expressed on the face of a promissory note. The defendants in- 
sisted on the right, under the act of February 25th, 1862, to acquit 
themselves of their obligation by tendering in payment a sum nom- 
inally equal in United States notes. But the note had been exe- 
cuted before the passage of the act, and the plaintiff insisted on 
his right under the Constitution to be paid the amount due in 
gold and silver. And it has not been, and cannot be, denied that 
the plaintiff was entitled to judgment according to his claim, unless 
bound by a constitutional law to accept the notes as coin. 

Thus two questions were directly presented: Were the defend- 
ants relieved by the act from the obligation assumed in the con- 
tract? Could the plaintiff be compelled, by a judgment of the 
court, to receive in payment a currency of different nature and 
value from that which was in the contemplation of the parties 
when the contract was made? 

The Court of Appeals resolved both questions in the negative, 
and the defendants, in the original suit, seek the reversal of that 
judgment by writ of error. 

It becomes our dutj^ therefore, to determine whether the act of 



HEPBURN V. GRISWOLD. 125 

February 25, 1862, so far as it makes United States notes a legal 
tender in jjayment of debts contracted prior to its passage, is 
constitutional and valid or otherwise. Under a deep sense of our 
obligation to perform this duty to the best of our ability and 
understanding, we shall proceed to dispose of the case presented 
by the record. 

We have already said, and it is generally, if not universally, con- 
ceded, that the government of the United States is one of limited 
powers, and that no department possesses any authority not granted 
by the Constitu-tion. 

It is not necessary, however, in order to prove the existence of 
a particular authority, to show a particular and express grant. The 
design of the Constitution was to establish a government competent 
to the direction and administration of the aifairs of a great nation, 
and, at the same time, to mark, by sufficiently definite lines, the 
sphere of its operations. To this end it was needful only to make 
express grants of general powers, coupled with a further grant of 
such incidental and auxiliary powers as might be required for the 
exercise of the powers expressly granted. These powers are neces- 
sarily extensive. It has been found, indeed, in the practical ad- 
ministration of the government, that a very large part, if not the 
largest part, of its functions have been performed in the exercise 
of powers thus implied. 

But the extension of power by implication was regarded with 
some apprehension by the wise men who framed, and by the intelli- 
gent citizens who adopted, the Constitution. This apprehension 
is manifest in the terms by which the grant of incidental and auxil- 
iary powers is made. All powers of this nature are included under 
the description of "power to make all laws necessary and proper for 
carrying into execution the powers expressly granted to Congress 
or vested by the Constitution in the government or in any of its 
departments or ofhcers." 

The same apprehension is equally apparent in the tenth article 
of the amendments, which declares that "the powers not delegated 
to the United States by the Constitution, nor prohibited by it to 
"the States, are reserved to the States or the people." 

We do not mean to say that either of these constitutional provi- 
sions is to be taken as restricting any exercise of power fairly war- 
ranted by legitimate derivation from one of the enumerated or 
express powers. The first was undoubtedly introduced to exclude 
all doubt in respect to the existence of implied powers; while the 
words "necessary and proper" were intended to have a "sense," 
to use the words of Mr. Justice Story, "at once admonitory and 



136 CASES ON CONSTITUTIONAL LAW. 

directory," and to require tliat the means used in the execution 
of an express power "should be bona fide appropriate to the end."^ 
The second provision was intended to have a like admonitor}^ and 
directory sense, and to restrain the limited government established 
under the Constitution from the exercise of powers not clearly 
delegated, or derived by just inference from powers so delegated. 

It has not been maintained in argument, nor indeed, would 
any one, however slightly conversant with constitutional law, think 
of maintaining that there is in the Constitution any express grant 
of legislative power to make any description of credit currency 
a legal tender in payment of debts. We must inquire then 
whether this can be done in the exercise of an implied power. 

The rule for determining whether a legislative enactment can 
be supported as an exercise of an implied power was stated by 
Chief Justice Marshall, speaking for the whole court, in the case 
of McCullough V. The State of Maryland,- and the statement then 
made has ever since been accepted as a correct exposition of the 
Constitution. His words were these: "Let the end be legitimate, 
let it be within the scope of the Constitution, and all means which 
are appropriate, which are plainly adapted to that end, which are 
not prohibited, but consistent with the letter and spirit of the 
Constitution, are constitutional." And in another part of the same 
opinion the practical application of this rule was thus illustrated: 
"Should Congress, in the execution of its powers, adopt measures 
which are prohibited by the Constitution, or should Congress, 
under the pretext of executing its powers, pass laws for the accom- 
plishment of objects not intrusted to the government, it would be 
the painful duty of this tribunal, should a case requiring such a 
decision come before it, to say that such an act was not the law 
of the land. But where the law is not prohibited, and is really 
calculated to effect any of the objects intrusted to the govern- 
ment, to undertake here to inquire into the degree of its necessity 
would be to pass the line which circumscribes the judicial depart- 
ment, and tread on legislative ground."^ 

It must be taken then as finally settled, so far as judicial deci- 
sions can settle anything, that the words "all laws necessary and 
proper for carrying into execution" powers expressly granted or 
vested, have, in the Constitution, a sense equivalent to that of the 
words, laws, not absolutely necessary indeed, but appropriate, 
plainly adapted to constitutional and legitimate ends; laws not 
prohibited, but consistent with the letter and spirit of the Consti- 

1 2 Storv on the Constitution, p. 24 Wheaton, 421. 

142, § 1253. 3^4 Wheaton, 423. 



HEPBURN V. GRISWOLD. 127 

tution; laws really calculated to effect objects intrusted to the 
government. 

The question before us, then, resolves itself into this: "Is the 
clause which makes United States notes a legal tender for debts 
contracted prior to its enactment, a law of the description stated in 
the rule?" 

It is not doubted that the power to establish a standard of value 
by which all other values may be measured, or, in other Avords-, to 
determine what shall be lawful money and a legal tender, is in its 
nature, and of necessity, a governmental power. Lt is in all" coun- 
tries exercised by the government. In the United States, so far 
as it relates to the precious metals, it is vested in Congress by the 
grant of the power to coin money. But can a power to impart 
these qualities to notes, or promises to pay money, when offered 
in discharge of pre-existing debts, be derived from the coinage 
power, or from any other power expressly given? 

It is certainly not the same power as the power to coin money. 
Nor is it in any reasonable or satisfactory sense an appropriate 
or plainly adapted means to the exercise of that power. Nor is 
there more reason for saying that it is implied in, or incidental 
to, the power to regulate the value of coined money of the United 
States, or of foreign coins. This power of regulation is a power 
to determine the weight, purity, form, impression, and denomina- 
tion of the several coins, and their relation to each other, and 
the relations of foreign coins to the monetary unit of the United 
States. 

Nor is the power to make notes a legal tender the same as the 
power to issue notes to be used as currency. The old Congress, 
imder the Articles of Confederation, was clothed by express grant 
with the power to emit bills of credit, which are in fact notes for 
circulation as currency; and yet that Congress was not clothed 
with the power to make these bills a legal tender in payment. And 
this court has recently held that the Congress, under the Consti- 
tution, possesses, as incidental to other powers, the same power 
as the old Congress to emit bills or notes; but it was expressly 
declared at the same time that this decision concluded nothing 
on the question of legal tender. Indeed, we are not aware that 
it has ever been claimed that the power to issue bills or notes has 
any identity with the power to make them a legal tender. On the 
contrary, the whole history of the country refutes that notion. 
The States have always been held to possess the power to author- 
ize and regulate the issue of bills for circulation by banks or indi- 
viduals, subject, as has been lately determined, to the control of 



128 CASES ON CONSTITUTIONAL LAW. 

Congress, for the purpose of establishing and securing a National 
currency; and yet the States are expressly prohibited by the Con- 
stitution from making anything but gold and silver coin a legal 
tender. This seems decisive on the point that the power to issue 
notes and the power to make them a legal tender are not the 
same power, and that they have no necessary connection with 
each other. 

But it has been maintained in argument that the power to 
make United States notes a legal tender in payment of all debts 
is a means appropriate and plainly adapted to the execution of the 
power to carry on war, of the power to regulate commerce, and 
of the power to borrow money. If it is, and is not prohibited, nor 
inconsistent with the letter or spirit of the Constitution, then the 
act which makes them such legal tender must be held to be con- 
stitutional. 

Let us, then, first inquire whether it is an appropriate and plain- 
ly adapted means for carrying on war? The affirmative argument 
may be thus stated: Congress has power to declare and provide 
for carrying on war; Congress has also power to emit bills of credit, 
or circulating notes receivable for government dues, and payable, so 
far at least as parties are willing to receive them, in discharge of 
government obligations; it will facilitate the use of such notes 
in disbursements to make them a legal tender in payment of exist- 
ing debts; therefore Congress may make such notes a legal tender. 

It is difficult to say to what express power the authority to make 
notes a legal tender in payment of pre-existing debts may not be 
upheld as incidental, upon the principles of this argument. Is 
there any power which does not involve the use of money? And 
is there any doubt that Congress may issue and use bills of credit 
as money in the execution of any power? The power to establish 
post-offices and post-roads, for example, involves the collection 
and disbursement of a great revenue. Is not the power to make 
notes a legal tender as clearly incidental to this power as to the 
war power? 

The answer to this question does not appear to us doubtful. 
The argument, therefore, seems to prove too much. It carries the 
doctrine of implied jDowers very far beyond any extent hitherto 
given to it. It asserts that whatever in any degree promotes an 
end within the scope of a general power, whether, in the correct 
sense of the word, appropriate or not, may be done in the exercise 
of an implied power. 

Can this proposition be maintained? 

It is said that this is not a question for the court deciding a 



HEPBURN V. GRISWOLD. 129 

cause, but for Congress exercising the power. But the decisive 
answer to this is that the admission of a legislative power to de- 
termine finally what powers have the described relation as means 
to the execution of other powers plainly granted, and, then, to 
exercise absolutely and without liability to question, in cases in- 
volving private rights, the powers thus determined to have that 
relation, would completely change the nature of American gov- 
ernment. It would convert the government, which the people 
ordained as a government of limited powers, into a government of 
unlimited powers. It would confuse the boundaries which sep- 
arate the executive and judicial from the legislative authority. It 
would obliterate every criterion which this court, speaking through 
the venerated Chief Justice in the case already cited, established 
for the determination of the question whether legislative acts are 
constitutional or unconstitutional. 

Undoubtedly among means appropriate, plainly adapted, really 
calculated, the legislature has unrestricted choice. But there can 
be no implied power to use means not within the description. 

Kow, then, let it be considered what has actually been done in 
the provision of a National currency. In July and August, 1861, 
and February, 1862, the issue of sixty millions of dollars in 
United States notes, payable on demand, was authorized.^ They 
were made receivable in payments, but were not declared a legal 
tender until March, 1862,- when the amount in circulation had 
been greatly reduced by receipt and cancellation. In 1862 and 
1863^ the issue of four hundred and fifty millions in United States 
notes, payable, not on demand, but, in effect, at the convenience 
of the government, was authorized, subject to certain restrictions 
as to fifty millions. These notes were made receivable for the 
bonds of the National loans, for all debts due to or from the 
United States, except duties on imports and interest on the public 
debt, and were also declared a legal tender. In March, 1863,'* the 
issue of notes for parts of a dollar was authorized to an amount 
not exceeding fifty millions of dollars. These notes were not de- 
clared a legal tender, but were made redeemable under regulations 
to be prescribed by the Secretary of the Treasury. In February, 
1863,^ the issue of three hundred millions of dollars in notes oE 
the National banking associations was authorized. These notes 
were made receivable to the same extent as United States notes, 

^ 12 Stat, at Large, 259, 313 and 3 ib., 345, 532 and 7C9. 
338. 4 lb., 711. 

2 lb., 370. 5 lb., 669. 



130 CASES ON CONSTITUTIONAL LAW. 

and provision was ni'ade to secure their redemption, but they were 
not made a legal tender. 

The several descriptions of notes have since constituted, under 
the various acts of Congress, the common currency of the United 
States. The notes which were not declared a legal tender have 
circulated with those which were so declared without unfavorable 
discrimination. 

It may be added as a part of the history that other issues, bear- 
ing interest at various rates, were authorized and made a legal 
tender, except in redemption of bank notes, for face amount ex- 
clusive of interest. Such were the one and two years five per cent, 
notes and three years compound interest notes.^ These notes 
never entered largely or permanently into the circulation; and 
there is no reason to think that their utility was increased or di- 
minished by the act which declared them a legal tender for face 
amount. They need not be further considered here. They serve 
only to illustrate the tendency remarked by all who have investi- 
gated the subject of paper money, to increase the volume of irre- 
deemable issues, and to extend indefinitely the application of the 
quality of legal tender. That it was carried no farther during the 
recent civil war, and has been carried no farther since, is due to 
circumstances, the consideration of which does not belong to this 
discussion. 

We recur, then, to the question under consideration. No one 
questions the general constitutionality, and not very many, perhaps, 
the general expediency of the legislation by which a note currency 
has been authorized in recent years. The doubt is as to the power 
to declare a particular class of these notes to be a legal tender in 
payment of pre-existing debts. 

The only ground upon which this power is asserted is, not that 
the issue of notes was an appropriate and plainly adapted means 
for carrying on the war, for that is admitted; but that the making 
of them a legal tender to the extent mentioned was such a means. 
Xow, we have seen that of all the notes issued those not de- 
clared a legal tender at all constituted a very large proportion, 
and that they circulated freely and without discount. 

It may be said that their equality in circulation and credit was 
due to the provision made by law for the redemption of this paper 
in legal tender notes. But this provision, if at all useful in this 
respect, was of trifling importance compared with that which made 
them receivable for government dues. All modern history testifies 

6 13 Id., 218, 425. 



HEPBURN V. GRISWOLD. 131 

that, in time of war especially, when taxes are augmented, large 
loans negotiated, and heavy disbursements made, notes issued by 
the authority of the government, and made receivable for dues of 
the government, always obtain at first a ready circulation; and 
even when not redeemable in coin, on demand, are as little and 
usually less subject to depreciation than any other description of 
notes, for the redemption of which no better provision is made. 
And the history of the legislation under consideration is, that it 
was upon this quality of receivability, and not upon the quality of 
legal tender, that reliance for circulation was originally placed; for 
the receivability clause appears to have been in the original draft 
of the bill, while the legal tender clause seems to have been intro- 
duced at a later stage of its progress. 

These facts certainly are not without weight as evidence that all 
the useful purposes of the notes would have been fully answered 
without making them a legal tender for pre-existing debts. It is 
denied, indeed, by eminent writers, that the quality of legal tender 
adds any thing at all to the credit or usefulness of government 
notes. They insist, on the contrary, that it impairs both. How- 
ever this may be, it must be remembered that it is as a means to 
an end to be attained by the action of the government, that the 
implied power of making notes a legal tender in all payments is 
claimed under the Constitution. Now, how far is the government 
helped by this means? Certainly it cannot obtain new supplies or 
services at a cheaper rate, for no one will take the notes for more 
than they are worth at the time of the new contract. The price will 
rise in the ratio of the depreciation, and this is all that could hap- 
pen if the notes were not made a legal tender. But it may be said 
that the depreciation will be less to him who takes them from 
the government, if the government will pledge to him its power 
to compel his creditors to receive them at par in payments. This 
is, as we have seen, by no means certain. If the quantity issued 
be excessive, and redemption uncertain and remote, great depre- 
ciation will take place; if, on the other hand, the quantiy is only 
adequate to the demands of business, and confidence in early re- 
demption is strong, the notes will circulate freely whether made 
a legal tender or not. 

But if it be admitted that some increase of availability is de- 
rived from making the notes a legal tender under new contracts, it 
by no means follows that any appreciable advantage is gained by 
compelling creditors to receive them in satisfaction of pre-exist- 
ing debts. And there is abundant evidence, that whatever benefit 
is possible from that compulsion to some individuals or to the 



132 CASES ON CONSTITUTIONAL LAW. 

government^ is far more than outweighed by the losses of property, 
the derangement of business, the fluctuations of currency and val- 
ues, and the increase of prices to the people and the government, 
and the long train of evils which flow from the use of irredeemable 
paper money. It is true that these evils are not to be attributed 
altogether to making it a legal tender. But this increases these 
evils. It certainly widens their extent and protracts their con- 
tinuance. 

We are unable to persuade ourselves that an expedient of this 
sort is an appropriate and plainly adapted means for the execution 
of the power to declare and carry on war. If it adc^ nothing to 
the utility of the notes, it cannot be upheld as a means to the end 
in furtherance of which the notes are issued. Xor can it, in our 
judgment, be upheld as such, if, while facilitating in some degree 
the circulation of the notes, it debases and injures the currency in 
its proper use to a much greater degree. And these considerations 
seem to us equally applicable to the powers to regulate commerce 
and to borrow money. Both powers necessarily involve the use 
of money by the people and by the government, but neither, as 
we think, carries with it as an appropriate and plainly adapted 
means to its exercise, the power of making circulating notes a 
legal tender in payment of pre-existing debts. 

But there is another view, which seems to us decisive, to what- 
ever express power the supposed implied power in question may 
be referred. In the rule stated by Chief Justice Marshall, the 
words appropriate, plainly adapted, really calculated, are qualified 
by the limitation that the means must be not prohibited, but con- 
sistent with the letter and spirit of the Constitution, Nothing so 
prohibited or inconsistent can be regarded as appropriate, or plainly 
adapted, or really calculated means to any end. 

Let us inquire, then, first, whether making bills of credit a legal 
tender, to the extent indicated, is consistent with the spirit of the 
Constitution. Among the great cardinal principles of that instru- 
ment, no one is more conspicuous or more venerable than the estab- 
lishment of justice. And what was intended by the establishment 
of justice in the minds of the people who ordained it is, happily, 
not a matter of disputation. It is not left to inference or conjec- 
ture, especially in its relations to contracts. 

When the Constitution was undergoing discussion in the Con- 
vention, the Congress of the Confederation was engaged in the 
consideration of the ordinance for the government of the territory 
northwest of the Ohio, — the only territory subject at that time to 
its regulation and control. By this ordinance certain fundamental 



HEPBURN V. GRISWOLD. 133 

articles of compact were established between the original States 
and the people and States of the territoiy, for the purpose, to use 
its own language, "of extending the fundamental principles of 
civil and religious liberty, whereon these republics" (the States 
united imder the Confederation), "their laws and constitutions are 
erected." Among these fundamental principles was this: "And 
in the just preservation of rights and property it is understood 
and declared that no law ought ever to be made, or have force in 
the said territory, that shall in any manner whatever interfere 
with or affect private contracts or engagements bona fide and with- 
out fraud previously formed." 

The same principle found more condensed expression in that 
most valuable provision of the Constitution of the United States, 
ever recognized as an efficient safeguard against injustice, that "no 
State shall pass any law impairing the obligation of contracts." 

It is true that this prohibition is not applied in terms to the 
government of the United States. Congress has express power to 
enact bankrupt laws, and we do not say that a law made in the 
execution of any other express power, which, incidentally only, 
impairs the obligation of a contract, can be held to be unconstitu- 
tional for that reason. 

But we think it clear that those who framed and those who 
adopted the Constitution, intended that the spirit of this prohi- 
bition should pervade the entire body of legislation, and that the 
justice which the Constitution was ordained to establish was not 
thought by them to be compatible with legislation of an opposite 
tendency. In other words, we cannot doubt that a law not made 
in pursuance of an express power, which necessarily and in its 
direct operation impairs the obligation of contracts, is inconsistent 
with the spirit of the Constitution. 

Another provision, found in the fifth amendment, must be con- 
sidered in this connection. We refer to that which ordains that 
private property shall not be taken for public use without com- 
pensation. This provision is kindred in spirit to that which for- 
bids legislation impairing the obligation of contracts; but, unlike 
that, it is addressed directly and solely to the National govern- 
ment. It does not, in terms, prohibit legislation which appropri- 
ates the private property of one class of citizens to the use of an- 
other class; but if such property cannot be taken for the l^enefit 
of all, without compensation, it is difficult to understand how it 
can be so taken for the benefit of a part without violating the spirit 
of the prohibition. 

But there is another provision in the same amendment, which. 



134 CASES ON CONSTITUTIONAL LAW. 

in our judgment, cannot have its full and intended effect unless 
construed as a direct prohibition of the legislation which we have 
heen considering. It is that which declares that "no person shall 
he deprived of life, liberty, or jDroperty, without due process of law.'" 

It is not doubted that all the provisions of this amendment op- 
erate directly in limitation and restraint of the legislative powers 
conferred by the Constitution. The only question is, whether an 
act which compels all those who hold contracts for the payment of 
gold and silver money to accept in payment a currency of inferior 
value deprives such persons of property without due process of law. 

It is quite clear, that whatever may be the operation of such an 
act, due process of law makes no part of it. Does it deprive any 
person of property? A very large proportion of the property of 
civilized men exists in the form of contracts. These contracts al- 
most invariably stipulate for the payment of money. And we have 
already seen that contracts in the United States, prior to the act 
under consideration, for the payment of money, were contracts to 
pay the sum specified in gold and silver coin. And it is beyond 
doubt that the holders of these contracts were and are as fully 
entitled to the protection of this constitutional provision as the 
holders of anj^ other description of property. 

But it may be said that the holders of no description of property 
are protected by it from legislation which incidentally only im- 
pairs its value. And it may be urged in illustration that the hold- 
ers of stock in a turnpike, a bridge, or a manufacturing corpora- 
tion, or an insurance company, or a bank, cannot invoke its pro- 
tection against legislation, which, by authorizing similar works or 
corporations, reduces its price in the market. But all this does not 
appear to meet the real difficulty. In the cases mentioned the 
injury is purely contingent and incidental. In the case we are 
considering it is direct and inevitable. 

If in the cases mentioned the holders of the stock were required 
by law to convey it on demand to any one who should think fit to 
offer half its value for it, the analogy would be more obvious. Xo 
one probably could be found to contend that an act enforcing the 
acceptance of fifty or seventy-five acres of land in satisfaction of 
a contract to convey a hundred would not come within the prohi- 
bition against arbitrary privation of property. 

"We confess ourselves unable to perceive any solid distinction be- 
tween such an act and an act compelling all citizens to accept, in 
satisfaction of all contracts for money, half or three-quarters or 
any other proportion less than the whole of the value actually due, 
accordino" to their terms. It is difficult to conceive what act would 



HEPBURN V. GRISWOLD. 135 

take private property without process of law if such an act would 
not. 

We are obliged to conclude that an act making mere promises 
to pay dollars a legal tender in payment of debts previously con- 
tracted, is not a means appropriate, plainly adapted, really cal- 
culated to carry into effect any express power vested in Congress; 
that such an act is inconsistent with the spirit of the Constitution; 
and that it is prohibited by the Constitution. 

It is not surprising that amid the tumult of the late civil war, 
and under the influence of apprehensions for the safety of the Re- 
public almost universal, different views, never before entertained 
by American statesmen or jurists, were adopted by many. The 
time was not favorable to considerate reflection upon the constitu- 
tional limits of legislative or executive authority. If power was 
assumed from patriotic motives, the assumption found ready justi- 
fication in patriotic hearts. Many who doubted yielded their 
doubts; many who did not doubt were silent. Some who were 
strongly averse to making government notes a legal tender felt 
themselves constrained to acquiesce in the views of the advocates 
of the measure. Not a few who then insisted upon its necessity, or 
acquiesced in that view, have, since the return of peace, and under 
the influence of the calmer time, reconsidered their conclusions, 
and now concur in those which we have just announced. These 
conclusions seem to us to be fully sanctioned by the letter and 
spirit of the Constitution. 

We are obliged, therefore, to hold that the defendant in error 
was not bound to receive from the plaintiffs the currency ten- 
dered to him in payment of their note, made before the passage 
of the act of February 25, 18G2. It follows that the judgment of 
the Court of Appeals of Kentucky must be affirmed. 

It is proper to say that Mr. Justice Grier, who was a member of 
the court when this cause was decided in conference,^ and when 
this opinion was directed to be read,- stated his judgment to be 
that the legal tender clause, properly construed, has no applica- 
tion to debts contracted prior to its enactment; but that upon 
the construction given to the act by the other judges he con- 
curred in the opinion that the clause, so far as it makes United 
States notes a legal tender for such debts, is not warranted by the 
Constitution. Judgment affirmed. 

[Me. Justice Milleea delivered a dissenting opinion, in which 
Justices Swayxe and Davis concurred.] 

1 November 27, 1869. 2 January 29, 1870. 



136 CASES ON CONSTITUTIONAL LAW. 

LEGAL TEXDEE CASES. 

KXOX V. LEE. PAEIvER v. DAVIS. 

12 Wallace, 457. Decided 1871. 

These were two suits; tlie tirst a writ of error to the Circuit 
Court for the Western District of Texas, the second an appeal 
from a decree in equity in the Supreme Judicial Court of Massa- 
chusetts. . . . 

Mr. .Justice Steoxg delivered the opinion of the court. 

The controlling questions in these cases are the following: Are 
the acts of Congress, known as the legal tender acts, constitutional 
when applied to contracts made before their passage; and, sec- 
ondly, are they valid as applicable to debts contracted since their 
enactment? These questions have been elaborately argued, and 
they have received from the court that consideration which their 
great importance demands. It would be difficult to overestimate 
the consequences which must follow our decision. They will affect 
the entire business of the country, and take hold of the possible 
continued existence of the government. If it be held by this court 
that Congress has no constitutional power, under any circum- 
stances, or in any emergency, to make treasury notes a legal tender 
for the payment of all debts (a power confessedly possessed by 
every independent sovereignty other than the United States), the 
government is without those means of self-preservation which, all 
must admit, may, in certain contingencies, become indispensable, 
even if they were not when the acts of Congress now called in 
question were enacted. It is also clear that if we hold the acts 
invalid as applicable to debts incurred, or transactions which have 
taken place since their enactment, our decision must cause, 
throughout the country, great business derangement, widespread 
distress, and the rankest injustice. The debts which have been 
contracted since February 25th, 1862, constitute, doubtless, by 
far the greatest portion of the existing indebtedness of the coun- 
try. They have been contracted in view of the acts of Congress 
declaring treasury notes a legal tender, and in reliance upon that 
declaration. Men have bought and sold, borrowed and lent, and 
assumed every variety of obligations contemplating that payment 
might be made with such notes. Indeed, legal tender treasury 
notes have become the universal measures of value. If now, by 
our decision, it be established that these debts and obligations can 



LEGAL TENDER CASES. 137 

be discharged only by gold coin; if, contrary to the expectation 
of all parties to these contracts, legal tender notes are rendered 
unavailable, the government has become an instrument of the 
grossest injustice; all debtors are loaded with an obligation it was 
never contemplated they should assume; a large percentage is 
added to every debt, and such must become the demand for gold 
to satisfy contracts, that ruinous sacrifices, general distress, and 
bankruptcy may be expeoted. These consequences are too obvious 
to admit ,of question. And there is no well-founded distinction 
to be made between the constitutional validity of an act of Con- 
gress declaring treasury notes a legal tender for the payment of 
debts contracted after its passage and that of an act making them 
a legal tender for the discharge of all debts, as well those incurred 
before as those made after its enactment. There may be a differ- 
ence in the effects produced by the acts, and in the hardship of 
their operation, but in both cases the fundamental question, that 
which tests the validity of the legislation, is, can Congress consti- 
tutionally give to treasury notes the character and qualities of 
money? Can such notes be constituted a legitimate circulating 
medium, having a defined legal value? If they can, then such 
notes musit be available to fulfill all contracts (not expressly ex- 
cepted) solvable in money, without reference to the time when the 
contracts were made. Hence it is not strange that those who hold 
the legal tender acts unconstitutional when applied to contracts 
made before February, 1862, find themselves compelled also to 
hold that the acts are invalid as to debts created after that time, 
and to hold that both classes of debts alike can be discharged only 
by gold and silver coin. 

The consequences of which we have spoken, serious as they are, 
must be accepted, if there is a clear incompatibility between the 
Constitution and the legal tender acts. But we are unwilling to 
precipitate them upon the country unless such an incompatibility 
plainly appears. A decent respect for a co-ordinate branch of the 
government demands that the judiciary should presume, until the 
contrary is clearly shown, that there has been no transgression of 
power by Congress — all the members of which act under the obli- 
gation of an oath of fidelity to the Constitution. Such has always 
been the rule. In Commonwealth v. Smith/ the language of the 
court was: "It must be remembered that, for weighty reasons, it 
has been assumed as a principle, in construing constitutions, by 
the Supreme Court of the United States, by this court, and by 

1 4 Binney, 123. 



138 CASES ON CONSTITUTIONA'L LAW. 

every other court of reputation in the United States, that an act 
of the legislature is not to be declared void unless the violation of 
the Constitution is so manifest as to leave no room for reasonable 
doubt;" and, in Fletcher v. Peck,^ Chief Justice Marshall said, 
"It is not on slight implication and vague conjecture that the 
legislature is to be pronounced to have transcended its powers and 
its acts to be considered void. The opposition between the Con- 
stitution and the law should be such that the judge feels a clear 
and strong conviction of their incompatibility with each other." 
It is incumbent, therefore, upon those who affirm the unconstitu- 
tionality of an act of Congress to show clearly that it is in viola- 
tion of the provisions of the Constitution. It is not sufficient for 
them that they succeed in raising a doubt. 

Nor can it be questioned that, when investigating the nature 
and extent of the powers conferred by the Constitution upon Con- 
gress, it is indispensable to keep in view the objects for which 
those powers were granted. This is a universal rule of construc- 
tion applied alike to statutes, wills, contracts, and constitutions. 
If the general purpose of the instrument is ascertained, the lan- 
guage of its provisions must be construed with reference to that 
purpose, and so as to subserve it. In no other way can the intent 
of the framers of the instrument be discovered. And there are 
more urgent reasons for looking to the ultimate purpose in exam- 
ining the . powers conferred by a constitution than there are in 
construing a statute, a will, or a contract. We do not expect to 
find in a constitution minute details. It is necessarily brief and 
comprehensive. It prescribes outlines, leaving the filling up to be 
deduced from the outlines. In Martin v. Hunter,^ it was said, 
"The Constitution unavoidably deals in general language. It did 
not suit the purpose of the people in framing this great charter of 
our liberties to provide for minute specifications of its powers, or 
to declare the means by which those powers should be carried into 
execution." And with singular clearness it was said by Chief Jus- 
tice Marshall, in McCulloch v. The State of Maryland,* "A con- 
stitution, to contain an accurate detail of all subdivisions of which 
its great powers will admit, and of all the means by which it 
may be carried into execution, would partake of the prolixity 
of a political code, and would scarcely be embraced by the human 
mind. It would probably never be understood by the public. Its 
nature, therefore, requires that only its great outlines should be 

2 6 Cranch, 87. 4 4 Id., 405. 

3 1 Wheaton, 326. 



LEGAL TENDER CASES. 139 

marked, its important objects designated, and the minor ingre- 
dients which compose those objects be deduced from the nature of 
the objects themselves." If these are correct principles, if they 
are proper views of the manner in which the Constitution is to be 
understood, the powers conferred upon Congress must be regarded 
as related to each other, and all means for a common end. Each 
is but a part of a system, a constituent of one whole. No single 
power is the ultimate end for which the Constitution was adopted. 
It may, in a very proper sense, be treated as a means for the ac- 
complishment of a subordinate object, but that object is itself a 
means designed for an ulterior purpose. Thus the power to levy 
and collect taxes, to coin money and regulate its value, to raise 
and support armies, or to provide for and maintain a navy, are 
instruments for the paramount object, which was to establish a 
government, sovereign within its sphere, with capability of self- 
preservation, thereby forming a union more perfect than that 
which existed under the old Confederacy. 

The same may be asserted also of all the non-enumerated 
powers included in the authority expressly given "to make all 
laws which shall be necessary and proper for carrying into execu- 
tion the specified powers vested in Congress, and all other powers 
vested by the Constitution in the government of the United States, 
or in any department or officer thereof." It is impossible to know 
what those non-enumerated powers are, and what is their nature 
and extent, without considering the purposes they were intended to 
subserve. Those purposes, it must be noted, reach beyond the 
mere execution of all powers definitely intrusted to Congress and 
mentioned in detail. They embrace the execution of all other 
powers vested by the Constitution in the government of the United 
States, or in any department or officer thereof. It certainly was 
intended to confer upon the government the power of self-preser- 
vation. Said Chief Justice Marshall, in Cohens v. The Bank of 
Virginia,^ "America has chosen to be, in many respects and to 
many purposes, a nation, and for all these purposes her govern- 
ment is complete; for all these objects it is supreme. It can then, 
in effecting these objects, legitimately control all individuals or 
governments within the American territory." He added, in the 
same case, "A constitution is framed for ages to come, and is de- 
signed to approach immortality as near as mortality can approach 
it. Its course cannot always be tranquil. It is exposed to storms 
and tempests, and its framers must be unwise statesmen indeed, if 

5 6 Wheaton, 414. 



140 CASES ON CONSTITUTIONAL LAW. 

they have not provided it, as far as its nature will permit, with 
the means of self-preservation from the perils it is sure to en- 
counter." That would appear, then, to be a most unreasonable 
construction of the Constitution which denies to the government 
created by it, the right to employ freely every means, not pro- 
hibited, necessary for its preservation, and for the fulfilment of 
its acknowledged duties. Such a right, we hold, was given by the 
last clause of the eighth section of its first article. The means 
or instrumentalities referred to in that clause, and authorized, are 
not enumerated or defijied. In the nature of things enumeration 
and specification were impossible. But they were left to the dis- 
cretion of Congress, subject only to the restrictions that they be 
not prohibited, and be necessary and proper for carrying into exe- 
tion the enumerated powers given to Congress, and all other 
powers vested in the government of the United States, or in any 
department or officer thereof. 

And here it is to be observed it is not indispensable to the 
existence of any power claimed for the Federal government that 
it can be found specified in the words of the Constitution, or 
clearly and directly traceable to some one of the specified powers. 
Its existence may be deduced fairly from more than one of the sub- 
stantive powers expressly defined, or from them all combined. It 
is allowable to group together any number of them and infer from 
them all that the power claimed has been conferred. Such a 
treatment of the Constitution is recognized by its own provisions. 
This is well illustrated in its language respecting the writ of 
habeas corpus. The power to suspend the privilege of that writ 
is not expressly given, nor can it be deduced from any one of the 
particularized grants of power. Yet it is provided that the privi- 
leges of the writ shall not be suspended except in certain defined 
contingencies. This is no express grant of power. It is a restric- 
tion. But it shows irresistibly that somewhere in the Constitution 
power to suspend the privilege of the writ was granted, either by 
some one or more of the specifications of power, or by them all 
combined. And, that important powers were understood by the 
people who adopted the Constitution to have been created by it, 
powers not enumerated, and not included incidentally in any one 
of those enumerated, is shown by the amendments. The first ten 
of these were suggested in the conventions of the States, and pro- 
posed at the first session of the first Congress, before any com- 
plaint was made of a disposition to assume doubtful powers. The 
preamble to the resolution submitting them for adoption recited 
that the "conventions of a number of the States had, at the time 



LEGAL TENDER CASES. 141 

of their adopting tlie Constitution, expressed a desire, in order to 
prevent misconstruction or abuse of its powers, tliat further de- 
claratory and restrictive clauses should be added." This was the 
origin of the amendments, and they are significant. They tend 
plainly to rdiow that, in the judgment of those who adopted the 
Constitution, there were powers created by it, neitlier expressly 
specified nor reducible from any one specified power, or ancillary 
to it alone, but which grew out of the aggregate of powers con- 
ferred upon the government, or out of the sovereignty instituted. 
Most of these amendments are denials of power which had not 
been expressly granted, and which cannot be said to have been 
necessary and proper for carrying into execution any other powers. 
Such, for example, is the prohibition of any laws respecting the 
establishment of religion, prohibiting the free exercise thereof, or 
abridging the freedom of speech or of the press. 

And it is of importance to observe that Congress has often ex- 
ercised, without question, powers that are not expressly given nor 
ancillary to any single enumerated power. Powers thus exercised 
are what are called by Judge Stor;^, in his Commentaries on the 
Constitution, resulting powers, arising from the aggregate powers 
of the government. He instances the right to sue and make con- 
tracts. Many others might be given. The oath required by law 
from officers of the government is one. So is building a capitol 
or a presidential mansion, and so also is the penal code. This last 
is worthy of brief notice. Congress is expressly authorized "to 
provide for the punishment of counterfeiting the securities and 
current coin of the United States, and to define and punish pira- 
cies and felonies committed on the high seas and offences against 
the laws of nations." It is also empowered to declare the pun- 
ishment of treason, and provision is made for impeachments. 
This is the extent of power to punish crime expressly conferred. 
It might be argued that the expression of these limited powers 
implies an exclusion of all other subjects of criminal legislation. 
Such is the argument in the present cases. It is said because 
Congress is authorized to coin money and regulate its value, it 
cannot declare anything other than gold and silver to be money, 
or make it a legal tender. Yet Congress, by the act of April 30, 
1790, entitled "An act more effectually to provide for the punish- 
ment of certain crimes against the United States," and the sup- 
plementary act of March 3, 1825, defined and provided for the 
punishment of a large class of crimes other than those mentioned 
in the Constitution, and some of the punishments prescribed are 
manifestly not in aid of any single substantive power. No one 



143 CASES ON CONSTITUTIONAL LAW. 

doubts that this was rightfully done, and the power thus exercised 
has been affirmed by this court in United States y. Marigold.® 
This case shows that a power may exist as an aid to the execution 
of an express power, or an aggregate of such powers, though there 
is another express power given relating in part to the same subject 
but less extensive. Another illustration of this may be found in 
connection with the provisions respecting a census. The Consti- 
tution orders an enumeration of free persons in the different 
States every ten years. The direction extends no further. Yet 
Congress has repeatedly directed an enumeration not only of free 
persons in the States, but of free persons in the Territories, and 
not only an enumeration of persons but the collection of sitatistics 
respecting age, sex, and production. Who questions the power to 
do this? 

Indeed, the whole history of the government and of congres- 
sional legislation has exhibited the use of a very wide discretion, 
even in times of peace and in the absence of any trying emergency, 
in the selection of the necessary and proper means to carry into 
effect the great objects for which the government was framed, 
and this discretion has generally been unquestioned, or, if ques- 
tioned, sanctioned by this court. This is true not only when an 
attempt has been made to execute a single power specifically given, 
but equally true when the means adopted have been appropriate 
to the execution, not of a single authority, but of all the powers 
created by the Constitution. Under the power to establish post- 
offices and post-roads Congress has provided for carrying the mails, 
punishing theft of letters and mail robberies, and even for trans- 
porting the mails to foreign countries. Under the power to regu- 
late commerce, provision has been made by law for the improve- 
ment of harbors, the establishment of observatories, the erection 
of lighthouses, break-waters, and buoys, the registry, enrollment, 
and construction of ships, and a code has been enacted for the 
government of seamen. Under the same power and other powers 
over the revenue and the currency of the country, for the con- 
venience of the treasury and internal commerce, a corporation 
known as the United States Bank was early created. To its capital 
the government subscribed one-fifth of its stock. But the corpora- 
tion was a private one, doing business for its own profit. Its in- 
corporation was a constitutional exercise of congressional power 
for no other reason than that it was deemed to be a convenient 
instrument or means for accomplishing one or more of the ends 

6 9 Howard, 560. 



LEGAL TENDER CASES. 143 

for which the government was established, or, in the language of 
the first article, already quoted, "necessary and proper" for carry- 
ing into execution some or all the powers vested in the govern- 
ment. Clearly this necessity, if any existed, was not a direct and 
obvious one. Yet this court, in McCuUoch v. Maryland,' unan- 
imously ruled that in authorizing the bank, Congress had not 
transcended its powers. So debts due to the United States have 
been declared by acts of Congress entitled to priority of payment 
over debts due to other creditors, and this court has held such acts 
warranted by the Constitution.'* 

This is enough to show how, from the earliest period of our ex- 
istence as a nation, the powers conferred by the Constitution have 
been construed by Congress and by this court whenever such action 
by Congress has been called in question. Happily the true mean- 
ing of the clause authorizing the enactment of all laws necessary 
and proper for carrying into execution the express powers con- 
ferred upon Congress, and all other powers vested in the govern- 
ment of the United States, or in any of its departments or officers, 
has long since been settled. In Fisher v. Blight,^ this court, speak- 
ing by Chief Justice Marshall, said that in construing it "it would 
be incorrect and would produce endless difficulties if the opinion 
should be maintained that no law was authorized which was not 
indispensably necessary to give effect to a specified power. Where 
various systems might be adopted for that purpose it might be 
said with respect to each that it was not necessary because the end 
might be obtained by other means." "Congress," said this court, 
"must possess the choice of means, and must be empowered to use 
any means which are in fact conducive to the exercise of a power 
granted by the Constitution. The government is to pay the debt 
of the Union, and must be authorized to use the means which 
appear to itself most eligible to effect that object. It has, conse- 
quently, a right to make remittances by bills or otherwise, and to 
take those precautions which will render the transaction safe." It 
was in this case, as we have already remarked, that a law giving 
priority to debts due to the United States was ruled to be consti- 
tutional for the reason that it appeared to Congress to be an eligi- 
ble means to enable the government to pay the debts of the Union. 

It was, however, in McCulloch v. Maryland that the fullest 
consideration was given to this clause of the Constitution granting 
auxiliary powers, and a construction adopted that has ever since 

7 4 Wheaton, 416. o 2 Cranch, 358. 

8 Fisher v. Blight, 2 Cranch, 358. 



144 CASES ON CONSTITUTIONAL LAW. 

been accepted as determining its true meaning. . . . [Here 
follows a consideration of McCullocli v. Maryland.] It is hardly 
necessary to say that these principles are received with universal 
assent. Even in Hepburn v. Griswold/° both the majority and 
minority of the court concurred in accepting the doctrines of Mc- 
Cullocli V. Maryland as sound expositions of the Constitution, 
though disagreeing in their application. 

With these rules of constitutional construction before us, settled 
at an early period in the history of the government, hitherto uni- 
versally accepted, and not even now doubted, we have a safe guide 
to a right decision of the questions before us. Before we can hold 
the legal tender acts unconstitutional, we must be convinced they 
were not appropriate means, or means conducive to the execution 
of any or all of the powers of Congress, or of the government, not 
appropriate in any plain degree (for we are not judges of the de- 
gree of appropriateness), or we must hold that they were prohib- 
ited. This brings us to the inquiry whether they were, when en- 
acted, appropriate instrumentalities for carrying into effect, or 
executing any of the known powers of Congress, or of any depart- 
ment of the government. Plainly to this inquiry, a consideration 
of the time when they v/ere enacted, and of the circumstances in 
which the government then stood, is important. It is not to be 
denied that acts may be adapted to the exercise of lawful power, 
and appropriate to it, in seasons of exigency, which would be inap- 
propriate at other times. 

We do not propose to dilate at length upon the circumstances 
in which the country was placed, when Congress attempted to 
make treasury notes a legal tender. They are of too recent oc- 
currence to justify enlarged description. Suffice it to say that a 
civil war was then raging which seriously threatened the over- 
throw of the government and the destruction of the Constitution 
itself. It demanded the equipment and support of large armies 
and navies, and the employment of money to an extent beyond 
the capacity of all ordinary sources of supply. Meanwhile the 
public treasury was nearly empty, and the credit of the govern- 
ment, if not stretched to its utmost tension, had become nearly 
exhausted. Moneyed institutions had advanced largely of their 
means, and more could not be expected of them. They had been 
compelled to suspend specie payments. Taxation was inadequate 
to pay even the interest on the debt already incurred, and it was 
impossible to await the income of additional taxes. The necessity 

10 8 Wallace, 603. 



LEGAL TENDER CASES. l-iS 

was immediate and pressing. The army was unpaid. Tliere was 
then due to the soldiers in the field nearly a score of millions of 
dollars. The requisitions from the War and Navy Departments 
for supplies exceeded fifty millions, and the current expenditure 
was over one million per day. The entire amount of coin in the 
country, including that in private hands, as well as that in bank- 
ing institutions, was insufficient to supply the need of the gov- 
ernment three months, had it all been poured into the treasury. 
Foreign credit we had none. We say nothing of the overhanging 
paralysis of trade, and of business generally, which threatened loss 
of confidence in the ability of the government to maintain its con- 
tinued existence, and therewith the complete destruction of all re- 
maining national credit. 

It was at such a time and in such circumstances that Congress 
was called upon to devise means for maintaining the army and 
navy, for securing the large supplies of money needed, and, indeed, 
for the preservation of the government created by the Constitu- 
tion. It was at such a time and in such an emergency that the 
legal tender acts were passed. .Now, if it were certain that noth- 
ing else would have supplied the absolute necessities of the treas- 
ury, that nothing else would have enabled the government to 
maintain its armies and navy, that nothing else would have saved 
the government and the Constitution from destraction, while the 
legal tender acts would, could any one be bold enough to assert 
that Congress transgressed its powers? Or if these enactments 
did work these results, can it be maintained now that they were 
not for a legitimate end, or "appropriate and adapted to that end," 
in the language of Chief Justice Marshall? That they did work 
such results is not to be doubted. Something revived the droop- 
ing faith of the people; something brought immediately to the 
government's aid the resources of the nation, and something en- 
abled the successful prosecution of the war, and the preservation 
of the national life. What was it, if not the legal tender enact- 
ments? 

But if it be conceded that some other means might have been 
chosen for the accomplishment of these legitimate and necessary 
ends, the concession does not weaken the argument. It is urged 
now, after the lapse of nine years, and when the emergency has 
]>assed, that treasury notes without the legal tender clause might 
have been issued and that the necessities of the government might 
thus have been supplied. Hence it is inferred there was no necessity 
for giving to the notes issued the capability of paying private 
debts. At best this is mere conjecture. But admitting it to be 
10 



146 CASES ON CONSTITUTIONAL LAW. 

true, what does it prove? Nothing more than that Congress had 
the choice of means for a legitimate end, each appropriate, and 
adapted to that end, though, perhaps, in different degrees. What 
then? Can this court say that it ought to have adopted one rather 
than the other? Is it our province to decide that the means se- 
lected were heyond the constitutional power of Congress, because 
we may think that other means to the same ends would have been 
more appropriate and equally efficient? That would be to assume 
legislative power, and to disregard the accepted rules for constru- 
ing the Constitution. The degree of the necessity for any con- 
gressional enactment, or the relative degree of its appropriate- 
ness, if it have any appropriateness, is for consideration in Con- 
gress, not here. Said Chief Justice Marshall, inMcCulloch v. 
Maryland, as already stated, "When the law is not prohibited, and 
is really calculated to effect any of the objects intrusted to the 
government, to undertake here to inquire into the degree of its 
necessity, would be to pass the line which circumscribes the judi- 
cial department, and to tread on legislative ground." 

It is plain to our view, however; that none of those measures 
which it is now conjectured might have been substituted for the 
legal tender acts could have met the exigencies of the case, at the 
time when those acts were passed. We have said that the credit 
of the government had been tried to its utmost endurance. Every ■ 
new issue of notes which had nothing more to rest upon than 
government credit, must have paralyzed it more and more, and 
rendered it increasingly difficult to keep the army in the field, or 
the navy afloat. It is an historical fact that many persons and in- 
stitutions refused to receive and pay those notes that had been 
issued, and even the head of the treasury represented to Congress 
the necessity of making the new issues legal tenders, or rather, 
declared it impossible to avoid the necessity. The vast body of 
men in the military service was composed of citizens who had left 
their farms, their work-shops, and their business, with families 
and debts to be provided for. The government could not pay 
them with ordinary treasury notes, nor could they discharge their 
debts with snch a currency. Something more was needed, some- 
thing that had all the uses of money. And as no one could be 
compelled to take common treasury notes in payment of debts, 
and as the prospect of ultimate redemption was remote and con- 
tingent, it is not too much to say that they must have depreciated 
in the market long before the war closed, as did the currency of 
the Confederate States. Making the notes legal tenders gave them 



LEGAL TENDER CASES. 147 

I 

a new use, and it needs no argumeiit to show that the value of 
things is in proportion to the uses to which they may be applied. 

It may be conceded that Congress is not authorized to enact laws 
in furtherance even of a legitimate end, merely because they are 
useful, or because they make the government stronger. There must 
be some relation between the means and the end; some adapted- 
ness or appropriateness of the laws to carry into execution the 
powers created by the Constitution. But when a statute has 
proved effective in the execution of powers confessedly existing, 
it is not too much to say that it must have had some appro- 
priateness to the execution of those powers. The rules of con- 
struction heretofore adopted, do not demand that the relation- 
ship between the means and the end shall be direct and imme- 
diate. Illustrations of this may be found in several of the cases 
above cited. The charter of a bank of the United States, the prior- 
ity given to debts due the government over private debts, and the 
exemption of Federal loans from liability to State taxation, are 
only a few of the many which might be given. The case of 
Veazie Bank v. Fenno,^ presents a suggestive illustration. There 
a tax of ten per cent, on State bank notes in circulation was held 
constitutional, not merely because it was a means of raising reve- 
nue, but as an instrument to put out of existence such a circula- 
tion in competition with notes issued by the government. There, 
this court, speaking through the Chief Justice, avowed that it is 
the constitutional right of Congress to provide a currency for the 
whole country; that this might be done by coin, or United States 
notes, or notes of National banks; and that it cannot be ques- 
tioned Congress may constitutionally secure the benefit of such 
a currency to the people by appropriate legislation. It was said 
there can be no question of the power of this government to emit 
bills of credit; to make them receivable in payment of debts to 
itself; to fit them for use by those who see fit to use them in all 
the transactions of commerce; to make them a currency uniform 
in value and description, and convenient and useful for circula- 
tion. Here the substantive power to tax was allowed to be em- 
ployed for improving the currency. It is not easy to see why, 
if State bank notes can be taxed out of existence for the purposes 
of indirectly making United States notes more convenient and 
useful for commercial purposes, the same end may not be secured 
directly by making them a legal tender. 

Concluding, then, that the provision which made treasury notes 

1 8 Wallace, 533. 



148 CASES ON CONSTITUTIONAL LAW. 

• 
a legal tender for tlie payment of all debts other than those ex- 
pressly excepted, was not an inappropriate means for carrying into 
execution the legitimate powers of the government, we proceed 
to inquire whether it was forbidden by the letter or spirit of the 
Constitution. It is not claimed that any express prohibition 
exists, but it is insisted that the spirit of the Constitution was 
violated by the enactment. Here those who assert the unconsti- 
tutionality of the acts mainly rest their argument. They claim 
that the clause which conferred upon Congress power "to coin 
money, regulate the value thereof, and of foreign coin," contains 
an implication that nothing but that which is the subject of coin- 
age, nothing but the precious metals can ever be declared by law 
to be money, or to have the uses of money. If by this is meant 
that because certain powers over the currency are expressly given 
to Congress, all other powers relating to the same subject are 
impliedly forbidden, we need only remark that such is not the 
manner in which the Constitution has always been construed. On 
the contrary it has been ruled that power over a particular subject 
may be exercised as auxiliary to an express power, though there 
is another express power relating to the same subject, less com- 
prehenisive.^ There an express power to punish a certain class 
of crimes (the only direct reference to criminal legislation con- 
tained in the Constitution), was not regarded as an objection to 
deducing authority to punish other crimes from another sub- 
stantive and defined grant of power. There are other decisions 
to the same eifect. To assert, then, that the clause enabling Con- 
gress to coin money and regulate its value tacitly implies a denial 
of all other power over the currency of the nation, is an attempt 
to introduce a new rule of construction against the solemn deci- 
sions of this court. So far from its containing a lurking prohi- 
bition, many have thought it was intended to confer upon Con- 
gress that general power over the currency which has always been 
an acknowledged attribute of sovereignty in every other civilized 
nation than our own, especially when considered in connection 
with the other clause which denies to the States the power to coin 
money, emit bills of credit, or make anything but gold and silver 
coin a tender in payment of debts. "We do not assert this now, 
but there are some considerations touching these clauses which 
tend to show that if any implications are to be deduced from 
them, they are of an enlarging rather than a restraining char- 
acter. The Constitution was intended to frame a government as 

2 United States v. Marigold, 9 Howard, 560. 



LEGAL TENDER CASES. 149 

distinguished from a league or compact, a government supreme- 
in some particulars over States and people. It was designed to 
provide the same currency, having a uniform legal value in all 
the States. It was for this reason the power to coin money and 
regulate its value was conferred upon the Federal government, 
while the same power as well as the power to emit bills of credit 
was withdrawn from the States. The States can no longer de- 
clare what shall he money, or regulate its value. Whatever power 
there is over the currency is vested in Congress. If the power 
to declare what is money is not in Congress, it is annihilated. This 
may indeed have been intended. .Some powers that usually belong 
to sovereignties were extinguished, but their extinguishment was 
not left to inference. In most cgises, if not in all, when it was in- 
tended that governmental powers, commonly acknowledged as 
such, should cease to exist, both in the States and in the Federal 
government, it was expressly denied to both, as well to the 
Fnited States as to the individual States. And generally, when 
one of such powers was expressly denied to the States only, it 
was for the purpose of rendering the Federal power more com- 
plete and exclusive. Why, then, it may be asked, if the design 
was to prohibit to the new government, as well as to the States, 
that general power over the currency which the States had when 
the Constitution was framed, was such denial not expressly ex- 
tended to the new government, as it was to the States? In view 
of this it might be argued with much force that when it is con- 
sidered in what brief and comprehensive terms the Constitution 
speaks, how sensible its framers must have been that emergencies 
might arise when the precious metals (then more scarce than now) 
might prove inadequate to the necessities of the government and 
the demands of the people — when it is remembered that paper 
money was almost exclusively in use in the States as the medium 
of exchange, and when the great evil sought to be remedied was 
the want of uniformity in the current value of money, it might 
be argued, we say, that the gift of power to coin money and reg- 
ulate the value thereof, was understood as conveying general power 
over the currency, the power which had belonged to the States, 
and which they surrendered. Such a construction, it might be 
said, would be in close analogy to the mode of construing other 
substantive powers granted to Congress. They have never been 
construed literally, and the government could not exist if they 
were. Thus the power to carry on war is confeiTcd by the power 
to "declare war." The whole system of the transportation of the 
mails is built upon the power to establish post-offices and post- 



150 CASES ON CONSTITUTIONAL LAW. 

roads. The power to regulate commerce has also been extended 
far beyond the letter of the grant. Even the advocates of a strict 
literal construction of the phrase, "to coin money and regulate the 
value thereof/' while insisting that it defines the material to be 
coined as metal, are compelled to concede to Congress large dis- 
cretion in all other particulars. The Constitution does not ordain 
Avhat metals may be coined, or prescribe that the legal value of 
the metals, when coined, shall correspond at all with their intrinsic 
value in the market. Nor does it even affirm that Congresp may 
declare anything to be a legal tender for the payment of debts. 
Confessedly the power to regulate the value of money coined, and 
of foreign coins, is not exhausted by the first regulation. More 
than once in our history has the regulation been changed with- 
out any denial of the power of Congi-ess to change it, and it seems 
to have been left to Congress to determine alike what metal shall 
be coined, its purity, and how far its statutory value, as money, 
shall corespond, from time to time, with the market value of the 
same metal as bullion. How then can the grant of a power to coin 
money and regulate its value, made in terms so liberal and unre- 
strained, coupled also with a denial to the States of all power 
over the currency, be regarded as an implied prohibition to Con- 
gress against declaring treasury notes a legal tender, if such declara- 
tion is approjoriate, and adapted to carrying into execution the ad- 
mitted powers of the government? 

We do not, however, rest our assertion of the power of Congress 
to enact legal tender laws upon this grant. "We assert only that 
the grant can, in no just sense, be regarded as containing an 
implied prohibition against their enactment, and that, if it raises 
any implications, they are of complete power over the currency, 
rather than restraining. 

"We come next to the argument much used, and, indeed, the 
main reliance of those who assert the unconstitutionality of the 
legal tender acts. It is that they are prohibited by the spirit of 
the Constitution because they indirectly impair the obligation of 
contracts. The argument, of course, relates only to those con- 
tracts which were made before February, 1862, when the first 
act was passed, and it has no bearing upon the question whether 
the acts are valid when applied to contracts made after their pas- 
sage. The argument assumes two things, — first, that the acts do, 
in effect, impair the obligation of contracts, and second, that 
Congress is prohibited from taking any action which may indi- 
rectly have that effect. Neither of these assumptions can be ac- 
cepted. It is true, that, under the acts, a debtor, who became 



LEGAL TENDER CASES. 151 

such before they were passed, may discharge his debt with the 
notes authorized by them, and the creditor is compellable to re- 
ceive such notes in discharge of his claim. But whether the obli- 
gation of the contract is thereby weakened can be determined 
only after considering what was the contract obligation. It was 
not a duty to pay gold or silver, or the kind of money recognized 
by law at the time when the contract was made, nor was it a duty 
to pay money of equal intrinsic value in the market. (We speak 
now of contracts to pay money generally, not contracts to pay some 
specifically defined species of money.) The expectation of the cred- 
itor and the anticij^ation of the debtor may have been that the 
contract would be discharged by the payment of coined metals, 
but neither the expectation of one party to the contract respecting 
its fruits, nor the anticipation of the O'tlier constitutes its obliga- 
tion. There is a well-recognized distinction between the expecta- 
tion of the parties to a contract and the duty imposed by it.^ 
Were it not so the expectation of results would be always equiva- 
lent to a binding engagement that they should follow. But the 
obligation of a contract to pay money is to pay that which the 
law shall recognize as money when the payment is to be made. 
If there is anything settled by decision it is this, and we do not 
understand it to be controverted.^ No one ever doubted that 
a debt of one thousand dollars, contracted before 1831, could be 
paid by one hundred eagles coined after that year, though they 
-contained no more gold than ninety-f oui' eagles such as were coined 
when the contract was made, and this, not because of the intrinsic 
value of the coin, but because of its legal value. The eagles 
coined after 1831 were not money until they were authorized by 
law, and had they been coined before, without a law fixing their 
legal value, they could no more have paid a debt than uncoined 
bullion, or cotton, or wheat. Every contract for the payment of 
money, simply, is necessarily subject to the constitutional power 
of the government over the currency, whatever that power may 
be, and the obligation of the parties is, therefore, assumed with 
reference to that power. Nor is this singular. A covenant for 
quiet enjoyment is not broken, nor is its obligation impaired by 
the government's taking the land granted in virtue of its right of 
eminent dom.ain. The expectation of the covenantee may be dis- 
appointed. He may not enjoy all he anticipated, but the grant 

lApsden v. Austin, 5 Adolphus 2 Davies, 28; Barrington v. Pot- 

& Ellis, N. S., 671; Dunn v. Sayles, ter, Dyer, 81, b. fol. 67; Faw v. 

lb., 685; Coffin v. Landis, 10 Marsteller, 2 Cranch 29. 
Wright, 426. 



152 CASES ON CONSTITUTIONAL LAW. 

was made and the covenant undertaken in subordination to the 
paramount right of the government.^ "\Ye have been asked whether 
Congress can declare that a contract to deliver a quantity of grain 
may be satisfied by the tender of a less quantity. Undoubtedly 
not. But this is a false analogy. There is a wide distinction be- 
tween a tender of quantities, or of specific articles, and a tender 
of legal values. Contracts for the delivery of specific articles 
belong exclusively to the domain of State legislation, while con- 
tracts for the payment of money are subject to the authority of 
Congress, at least so far as relates to the means of payment. They 
are engagements to pay with lawful money of the United States, 
and Congress is empo^vered to regulate that money. It cannot, 
therefore, be maintained that the legal tender acts impaired the 
obligation of contracts. 

Xor can it be truly asserted that Congress may not, by its action, 
indirectly impair the obligation of contracts, if by the expression 
be meant rendering contracts fruitless, or partially fruitless. Di- 
rectly it may, confessedly, by passing a bankrupt act, embracing 
past as well as future transactions. This is obliterating contracts 
entirety. So it may relieve parties from their aparent obliga- 
tions indirectly in a multitude of ways. It may declare war, or, even 
in peace, pass non-intercourse acts or direct an embargo. All such 
measures may, and must operate seriously upon existing contracts, 
and may not merely hinder, but relieve the parties to such con- 
tracts entirely from performance. It is, then, clear that the powers 
of CongTess may be exerted, though the effect of such exertion 
may be in one case to annul, and in other cases to impair the 
obligation of contracts. And it is no sufficient answer to this 
to say it is true only when the powers exerted were expressly 
granted. There is no ground for any such distinction. It has no 
warrant in the Constitution, or in any of the decisions of this 
court. "We are accustomed to speak for mere convenience of the 
express and implied powers conferred upon Congress. But in fact 
the auxiliary powers, those necessary and appropriate to the exe- 
cution of other powers singly described, are as exjDressly given as 
is the power to declare war, or to establish uniform laws on the 
subject of bankruptcy. They are not catalogued, no list of them 
is made, but they are grouped in the last clause of section eight 
of the first article, and granted in the same words in which all 
other powers are granted to Congress. And this court has recog- 
nized no such distinction as is now attempted. An embargo sus- 

3 Dobbins v. Brown, 2 Jones (Pennsylvania), 75; Workman v. 
Mifflin, 6 Casey, 362. 



LEGAL TENDER CASES. 153 

pends many contracts and renders performance of others impos- 
sible, yet the power to enforce it has been declared constitutional.* 
The power to enact a law directing an embargo is one of the aux- 
iliary powers, existing only because appropriate in time of peace 
to regulate commerce, or appropriate to carrying on war. Though 
not conferred as a substantive power, it has not been thouglit 
to be in conflict with the Constitution, because it impairs indirectly 
the obligation of contracts. That discovery calls for a new read- 
ing of the Constitution. 

If, then, the legal tender acts were justly chargeable with im- 
pairing contract obligations, they would not, for that reason, be 
forbidden, unless a different rule is to be applied to them from 
that which has hitherto prevailed in the construction of other 
powers granted by the fundamental law. But, as already inti- 
mated, the objection misapprehends the nature and extent of the 
contract obligation spoken of in the Constitution. As in a state 
of civil society property of a citizen or subject is ownership, sub- 
ject to the lawful demands of the sovereign, so contracts must be 
understood as made in reference to the possible exercise of the 
rightful authority of the government, and no obligation of a con- 
tract can extend to the defeat of legitimate government authority. 

Closely allied to the objection we have just been considering 
is the argument pressed upon us that the legal tender acts were 
prohibited by the spirit of the fifth amendment, which forbids 
taking private property for public use without just compensa- 
tion or due process of law. That provision has always been under- 
stood as referring only to a direct appropriation, and not to con- 
sequential injuries resulting from the exercise of lawful power. 
It has never been supposed to have any bearing upon, or to in- 
hibit laws that indirectly work harm and loss to individuals. A 
new tariff, an embargo, a draft, or a war may inevitably bring upon 
individuals great losses; may, indeed, render valuable property 
almost valueless. They may destroy the worth of contracts. But 
who ever supposed that, because of this, a tariff could not be 
changed, or a non-intercourse act, or an embargo be enacted, or a 
war be declared? By the act of June 28, 1834, a new regula- 
tion of the weight and value of gold coin was adopted, and about 
six per cent, was taken from the weight of each dollar. The effect 
of this was that all creditors were subjected to a corresponding 
loss. The debts then due became solvable with six per cent, less 
gold than was required to pay them before. The result was thus 

4 Gibbons v. Ogden, 9 Wheaton, 1. 



154 CASES ON CONSTITUTIONAL LAW. 

precisely what it is contended the legal tender acts worked. But 
was it ever imagined this was taking private property without com- 
pensation or without due process of law? Was the idea ever ad- 
vanced that the new regulation of gold coin was against the spirit 
of the fifth amendment? And has any one in good faith avowed 
his belief that even a law debasing the current coin, by increasing 
the alloy, would be taking private property? It might be im- 
politic and unjust, but could its constitutionality be doubted? 
Other statutes have, from time to time, reduced the quantity of 
silver in silver coin without any question of their constitutionality. 
It is said, however, now, that the act of 1834 only brought the 
legal value of gold coin more nearly into correspondence with its 
actual value in the market, or its relative value to silver. But we 
do not perceive that this varies the case or diminishes its force 
as an illustration. The creditor who had a thousand dollars 
due him on the 31st day of July, 1834 (the day before the act took 
effect), was entitled to a thousand dollars of coined gold of the 
rate and fineness of the then existing coinage. The day after, 
he was entitled only to a sum six per cent, less in weight and 
in market value, or to a smaller number of silver dollars. Yet 
he would have been a bold man who had asserted that, because of 
this, the obligation of the contract was impaired, or that private 
property w^as taken without compensation or without due process 
of law. No such assertion, so far as we know, was ever made. 
Admit it Avas a hardship, but it is not every hardship that is unjust, 
much less that is unconstitutional; and certainly it would be an 
anomaly for us to hold an act of Congress invalid merely because 
v/e might think its provisions harsh and unjust. 

We are not aware of anything else which has been advanced in 
support of the proposition that the legal tender acts were forbidden 
by either the letter or the spirit of the Constitution. If, therefore, 
they were, what we have endeavored to show, appropriate means 
for legitimate ends, they were not transgressive of the authority 
vested in Congress, 

Here we might stop; but we will notice briefly an argument pre- 
sented in support of the position that the unit of money value 
must possess intrinsic value. The argument is derived from assim- 
ilating the constitutional provision respecting a standard of weights 
and measures to that conferring the power to coin money and 
regulate its value. It is said there can be no uniform standard of 
weights without weight, or of measure without length or space, and 
we are asked how anything can be made a uniform standard of 
value which has itself no value? This is a question foreign to the 



LEGAL TENDER CASES. 155 

subject before us. The legal tender acts do not attempt to make 
paper a standard of value. We do not rest their validity upon 
the assertion that their emission is coinage, or any regulation of the 
value of money; nor do we assert that Congress may make any- 
thing which has no value money. What we do assert is, that 
Congress has power to enact that the government's promises to 
pay money shall be, for the time being, equivalent in value to the 
representative of value determined by the coinage acts, or to mul- 
tiples thereof. It is hardly correct to speak of a standard of value. 
The Constitution does not speak of it. It contemplates a standard 
for that which has gravity or extension; but value is an ideal 
thing. The coinage acts fix its unit as a dollar; but the gold or 
silver thing we call a dollar is, in no sense, a standard of a dollar. 
It is a representative of it. There might never have been a piece 
of money of the denomination of a dollar. There never was a 
pound sterling coined until 1815, if we except a few coins struck 
in the reign of Henry VIII., almost immediately debased, yet it 
has been the unit of British currency for many generations. It 
is, then, a mistake to regard the legal tender acts as either fixing 
a standard of value or regulating money values, or making that 
money which has no intrinsic value. 

But, without extending our remarks further, it will be seen that 
we hold the acts of Congress constitutional as applied to contracts 
made either before or after their passage. In so holding, we over- 
rule so much of what was decided in Hepburn v. Griswold,^ as 
ruled the acts unwarranted by the Constitution so far as they apply 
to contracts made before their enactment. That case was decided 
by a divided court, and by a court having a less number of judges 
than the law then in existence provided this court shall have. 
These cases have been heard before a full court, and they have re- 
ceived our most careful consideration. The questions involved 
are constitutional questions of the most vital importance to the 
government and to the public at large. Wo have been in the habit 
of treating cases involving a consideration of constitutional power 
difEerently from those which concern merely private right. ^ We 
are not accustomed to hear them in the absence of a full court, if 
it can be avoided. Even in cases involving only private rights, if 
convinced we had made a mistake, we would hear another argu- 
ment and correct our error. And it is no unprecedented thing in 
courts of last resort, both in this country and in England, to over- 

1 8 Wallace, 603. 2 Briscoe v. Bank of Kentucky, 

8 Peters, 118. 



156 CASES ON CONSTITUTIONAL LAW. 

rule decisions previously made. We agree tliis should not be done 
inconsiderately, but in a case of such far-reaching consequences 
as the present, thoroughly convinced as we are that Congress has 
not transgressed its powers, we regard it as our duty so to decide 
and to afhrm both these judgments. 

The other questions raised in the case of Knox v. Lee were sub- 
stantially decided in Texas v. White.^ 

Judgment in each case affirmed. 

Me. Justice Beadley, concurring. . . . The Constitution 
of the United States established a government, and not a league, 
compact, or partnership. . .• . The United States is not only 
a government, but it is a National government, and the only gov- 
ernment in this country that has the character of nationality. 
. . . Such being the character of the General government, it 
seems to be a self-evident proposition that it is invested with all 
those inherent and implied powers which, at the time of adopting 
the Constitution, were generally considered to belong to every 
government as such, and as being essential to the exercise of its 
functions. If this proposition be not true, it certainly is true 
that the government of the United States has express authority, 
in the clause last quoted, to make all such laws (usually regarded 
as inherent and implied) as may be necessary and proper for carry- 
ing on the government as constituted, and vindicating its authority 
and existence. 

Another proi3osition equally clear is, that at the time the Con- 
stitution was adopted, it was and had for a long time been, the 
practice of most, if not all, civilized governments, to employ 
the public credit as a means of anticipating the national revenues 
for the purpose of enabling them to exercise their governmental 
functions, and to meet the various exigencies to which all nations 
are subject, and that the mode of employing the public credit 
was various in different countries, and at different periods — some- 
times by the agency of a national bank, sometimes by the issue of 
exchequer bills or bills of credit, and sometimes by pledges of the 
public domain. . . . 

These precedents are cited without reference to the policy or 
impolicy of the several measures in the particular cases; that is 
always a question for the legislative discretion. They establish 
the historical fact that when the Constitution was adopted, the 
employment of bills of credit was deemed a legitimate means of 
meeting the exigencies of a regularly constituted government, and 

3 7 Wallace, 700. 



JUILLIARD V. GREENMAN. 157 

that the affixing to them of the quaUty of a legal tender was re- 
garded as entirely discretionary with the legislature. . . . 

In view, therefore, of all these facts, when we find them estab- 
lishing the present government, with all the powers before re- 
hearsed, giving to it, amongst other things, the sole control of the 
money of the country and expressly prohibiting the States from 
issuing bills of credit and from making anything but gold and 
silver a legal tender, and imposing no such restriction upon the 
General government, how can we resist the conclusion that they 
intended to leave to it that power unimpaired, in case the future 
exigencies of the nation should require its exercise? . . . 

In my judgment the decrees in all the cases before us should 
be affirmed. 

[The Chief Justice and Justices Clifford and Field each 
delivered dissenting opinions. Mr. Justice jSTelson also dis- 
sented.] 

Compare the language of Justice Bradley Avith the following 
sentences from James Wilson's Considerations on the Power to 
incorporate the Bank of North America, Works (Andrew's Edi- 
tion), I., 558: 

"To many purposes, the United States are to be considered as 
one undivided, independent nation, and as possessed of all the 
rights, and powers, and properties, by the law of nations incident 
to such. Whenever an object occurs, to the direction of which no 
particular state is competent, the management of it must, of neces- 
sity, belong to the United States in congress assembled. There 
are many objects of this extended nature." 



LEGAL TENDEE CASE. 

JUILLIARD V. GEEENMAN". 

110 U. S., 421. Decided 1S84. 

JuiLLiARD, a citizen of New York, brought an action against 
Greenman, a citizen of Connecticut, in the Circuit Court of the 
United States for the Southern District of New York, alleging 
that the plaintiff sold and delivered to the defendant, at his spe- 



158 CASES ON CONSTITUTIONAL LAW. 

cial instance and request^ one hundred bales of cotton, of the value 
and for the agreed price of $5,122.90; and that the defendant 
agreed to pay that sum in cash on the delivery of the cotton, and 
had not paid the same or any part thereof, except that he had 
paid the sum of $22.90 on account, and was now justly indebted 
to the plaintiff therefor in the sum of $5,100; and demanding 
judgment for this sum with interest and costs. 

The defendant in his answer admitted the citizenship of the 
parties, the purchase and delivery of the cotton, and the agreement 
to pay therefor, as alleged; and averred that, after the delivery 
of the cotton, he offered and tendered to the plaintiff, in full 
payment, $22.50 in gold coin of the United States, forty cents in 
silver coin of the United States, and two United States notes, one 
of the denomination of $5,000, and the other of the denomina- 
tion of $100, of the description known as United States legal 
tender notes, purporting by recital thereon to be legal tender, at 
their respective face values, for all debts, public and private^ 
except duties on imports and interest on the public debt, and 
which after having been presented for payment, and redeemed 
and paid in gold coin, since January 1st, 1879, at the United 
States sub-treasury in New York, had been reissue^ and kept in 
circulation under and in pursuance of the act of Congress of May 
31st, 1878, ch. 146; that at the time of offering and tendering 
these notes and coin to the plaintiff, the sum of $5,122.90 was 
the entire amount due and owing in payment for the cotton, but 
the plaintiff declined to receive the notes in payment of $5,100 
thereof; and that the defendant had ever since remained, and 
still was, ready and willing to pay to the plaintiff the sum of 
$5,100 in these notes, and brought these notes into court ready 
to be paid to the plaintiff, if he would accept them. 

The plaintiff demurred to the answer, upon the grounds that the 
defense, consisting of new matter, was insufficient in law upon 
its face, and that the facts stated in the answer did not con- 
stitute any defense to the cause of action alleged. 

The Circuit Court overruled the demurrer and gave judgment 
for the defendant, and the plaintiff sued out this writ of error. 



Me. Justice Gkat delivered the opinion of the court. 

The amount which the plaintiff seeks to recover, and which,, 
if the tender pleaded is insufficient in law, he is entitled to recover, 
is $5,100. There can, therefore, be no doubt of the jurisdictioa 



JUILLIARD V. GREENMAN. 159 

of this court to' revise the judgment of the Circuit Court. Act of 
February 16th, 1875, ch. 77, § 3; 18 Stat., 315. 

The notes of the United States, tendered in pajment of the 
defendant's debt to the plaintiff, were originally issued under the 
acts of Congress of February 25th, 1862, ch. 33, July 11th, 1862, 
ch. 142, and March 3d, 1863, ch. 73, passed during the war of 
the rebellion, and enacting that these notes should "be lawful 
money and a legal tender in payment of all debts, public and 
private, within the United States," except for duties on im.ports 
and interest on the public debt. 12 Stat., 345, 532, 70S. 

The provisions of the earlier acts of Congress, so far as it is 
necessary, for the understanding of the recent statutes, to quote 
them, are re-enacted in the following provisions of the Eevised 
Statutes: — 

"Sec. 3579. When any United States notes are returned to the 
Treasury, they may be reissued, from time to time, as the exigencies 
of the public interest may require. 

"Sec. 3580. When any United States notes returned to the 
Treasury are so mutilated or otherwise injured as to be unfit for 
use, the Secretary of the Treasury is authorized to replace the 
same with others of the same character and amounts. 

"Sec. 3581. Mutilated United States notes, when replaced ac- 
cording to law, and all other notes Avhich by law are required to be 
taken up and not reissued, when taken up shall be destroyed in 
such manner and under such regulations as the Secretary of the 
Treasury may prescribe. 

"Sec. 3582. The authority given to the Secretary of the Treas- 
ury to make any reduction of the currency, by retiring and can- 
celling United States notes, is suspended." 

"Sec. 3588. United States notes shall be lawful money and a 
legal tender in payment of all debts, public and private, within 
the United States, except for duties on imports and interest on 
the public debt." 

The act of January 14th, 1875, ch. 15, "to provide for the re- 
sumption of specie payments," enacted that on and after eTanuary 
1st, 1879, "the Secretary of the Treasury shall redeem in coin the 
United States legal tender notes then outstanding, on their pre- 
sentation for redemption at the office of the Assistant Treasurer 
of the United States in the City of ISTew York, in sums of not 
less than fifty dollars," and authorized him to use for that pur- 
pose any surplus revenues in the Treasury and the proceeds of 
the sales of certain bonds of the United States. 18 Stat., 296. 



16*0 CASES ON CONSTITUTIONAL LAW. 

The act of May 31st, 1878, ch. 146, under which the notes in 
question were reissued, is entitled "An act to forbid the further 
retirement of United States legal tender notes," and enacts as 
follows: — • 

"From and after the passage of this act it shall not be lawful 
for the Secretary of the Treasury or other officer under him to 
cancel or retire any more of the United States legal tender notes. 
And when any of said notes may be redeemed or be recei-ved into 
the Treasury under any law from any source whatever and shall 
belong to the United States, they shall not be retired, cancelled, 
or destroyed, but they shall be reissued and paid out again and 
kept in circulation: Provided, That nothing herein shall prohibit 
the cancellation and destruction of mutilated notes and the issue 
of other notes of like denomination in their stead, as now provided 
by law. All acts and parts of acts in conflict herewith are hereby 
repealed." 20 Stat., 87. 

The manifest intention of this act is that the notes Avhich it 
directs, after having been redeemed, to be reissued and kept in 
circulation, shall retain their original quality of being a legal 
tender. 

The single question, therefore, to be considered, and upon the 
answer to which the judgment to be rendered between these par- 
ties depends, is Avhether notes of the United States, issued in time 
of war, under acts of Congress declaring them to be a legal 
tender in payment of private debts, and afterwards in time of 
peace redeemed and paid in gold coin at the Treasury, and then 
reissued under the act of 1878, can, under the Constitution of 
the United States, be a legal tender in payment of such debts. 

Upon full consideration of the case, the court is unanimously 
of opinion that it cannot be distinguished in principle from the 
cases heretofore determined, reported under the names of the 
Legal Tender Cases, 12 Wall., 457; Dooley v. Smith, 13 Wall., 604; 
Eailroad Company v. Johnson, 15 Wall., 195; and Maryland v. 
Eailroad Company, 22 Wall., 105; and all the judges, except Mr. 
Justice Field, who adheres to the views expressed in his dissent- 
ing opinions in those cases, are of opinion that they were rightly 
decided. 

The elaborate printed briefs submitted by counsel in this case, 
and the opinions delivered in the Legal Tender Cases, and in the 
earlier case of Hepburn v. Griswold, 8 Wall., 603, which those 
cases overruled, forcibly present the arguments on either side of 
the question of the power of Congress to make the notes of the 
United States a legal tender in payment of private debts. With- 



JUILLIARD V. GREENMAN. 161 

out undertaking to deal with all those arguments, the court has 
thought it lit that the grounds of its judgment in the case at bar 
should be fully stated. 

No question of the scope and extent of the implied powers of 
Congress under the Constitution can be satisfactorily discussed 
without repeating much of the reasoning of Chief Justice Marshall 
in the great judgment in McCulloch v. Maryland, 4 Wheat., 316, 
by which the power of Congress to incorporate a bank was demon- 
strated and affirmed, notwithstanding the Constitution does not 
enumeraite, among the powers granted, that of establishing a bank 
or creating a corporation. 

The people of the United States by the Constitution established 
a national government, with sovereign powers, legislative, execu- 
tive, and judicial. "The government of the Union," said Chief 
Justice Marshall, "though limited in its powers, is supreme within 
its sphere of action;" "and its laws, when made in pursuance of 
the Constitution, form the supreme law of the land." "Among 
the enumerated powers of government, we find the great powers 
to lay and collect taxes; to borrow money; to regulate commerce; 
to declare and conduct a war; and to raise and support armies 
and navies. The sword and the purse, all the external relations, 
and no inconsiderable portion of the industry of the nation, 
are intrusted to its government." 4 Wlieat., 405, 406, 407. 

A constitution, establishing a frame of government, declaring 
fundamental principles, and creating a national sovereignty, and 
intended to endure for ages and to be adapted to the various 
crises of human affairs, is not to be interpreted with the strictness 
of a private contract. The Constitution of the United States, by 
apt words of designation or general description, marks the out- 
lines of the powers granted to the national legislature; but it 
does not undertake, with the precision and detail of a code of 
laws, to enumerate the subdivisions of those powers, or to specify 
all the means by which they may be carried into execution. Chief 
Justice Marshall, after dwelling upon this view, as required by 
the very nature of the Constitution, by the language in which it 
is framed, by the limitations upon the general powers of Con- 
gress introduced in the ninth section of the first article, and by 
the omission to use any restrictive term which might prevent its 
receiving a fair and just interpretation, added these emphatic 
words: "In considering this question, then, w^e must never forget 
that it is a constitution we are expounding." 4 A^lieat., 107. See 
also page 415. 

The breadth and comprehensiveness of the words of the Con- 
11 



162 CASES ON CONSTITUTIONAL LAW. 

stitution are nowhere more strikingly exhibited than in regard 
to the powers over the subjects of revenue, finance, and currency, 
of which there is no other express grant than may be found in 
these few brief clauses: — 

"The Congress shall have power 

"To lay and collect taxes, duties, imposts, and excises, to pay 
the debts and provide for the common defense and general wel- 
fare of the United States; but all duties, imposts, and excises 
shall be uniform throughout the United States; 

"To borrow money on the credit of the United States; 

"To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes; 

"To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures." 

The section which contains the grant of these and other prin- 
cipal legislative powers concludes by declaring that the Congress 
shall have power 

"To make all laws which shall be necessary and proper for carry- 
ing into execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the United 
States, or in any department or ofiicer thereof." 

By the setttled construction and the only reasonable interpreta- 
tion of this clause, the words "necessary and proper" are :_jt 
limited to such measures as are absolutely and indispensably nec- 
essary, without whicli the powers granted must fail of execu- 
tion; but they include all appropriate means which are conducive 
or adapted to the end to be accomplished, and which in the Judg- 
ment of Congrec; will most advantageously effect it. 

That clause of the Constitution which declares that "the Con- 
gress shall have the power to lay and collect taxes, duties, imposts, 
and excises, to pay the debts and provide for the common defense 
and general welfare of the United States," either embodies a grant 
of power to pay the debts of the United States, or presupposes and 
assumes that power as inherent in the United States as a sovereign 
government. But, in whichever aspect it be considered, neither 
this nor any other clause of the Constitution makes any mention of 
priority or preference of the United States as a creditor over other 
creditors of an individual debtor. Yet this court, in the early 
case of United States v. Fisher, 2 Cranch, 358, held that, under 
the power to pay the debts of the United States, Congress had 
the power to enact that debts due to the United States should 
have that priority of payment out of the estate of an insolvent 
debtor, which the law of England gave to debts due the Crown. 



JUILLIARD V. GREENMAN. 163 

In delivering judgment in that case, Chief Justice Marshall 
expounded the clause giving Congress power to make all neces- 
sary and proper laws, as follows: "In construing this clause, it 
would be incorrec-t, and would prodvice endless difficulties, if 
the opinion should be maintained that no law was authorized 
which was not indispensably necessary to give effect to a specified 
power. Where various systems might be adopted for that pur- 
pose, it might be said with respect to each, that it was not nec- 
essary, because the end might be obtained by other means. Con- 
gress must possess the choice of means, and must be empowered 
to use any means which are in fact conducive to the exercise of 
a power granted by the Constitution. The government is to pay 
the debt of the Union, and must be authorized to use the means 
which appear to itself the most eligible to effect that object." ^ 
Cranch, 396. 

In McCulloch v. Maryland, he more fully developed the same 
view, concluding thus: "We admit, as all must admit, that the 
powers of the government are limited, and that its limits are not 
to be transcended. But we think the sound constniction of the 
Constitution must allow to the national legislature that discre- 
tion, with respect to the means by which the powers it con- 
fers are to be carried into execution, which will enable that body 
o perform the high duties assigned to it, in the manner most 
beneficial to the people. Let the end be legitimate, let it be within 
the scope of the Constitution, and all means which are appro- 
priate, which are plainly adapted to that end, which are not pro- 
hibited, but consist with the letter and spirit of the Constitution, 
are constitutional." 4 Wheat., 421. 

The rule of interpretation thus laid down has been constantly 
adhered to and acted on by this court, and was accepted as express- 
ing the true test by all the judges who took part in the former 
discussions of the power of Congress to make the treasury notes 
of the United States a legal tender in payment of private debts. 

The other judgments delivered by Chief Justice Marshall con- 
tain nothing adverse to the power of Congress to issue legal tender 
notes. 

By the Articles of Confederation of 1777, the United States in 
Congress assembled were authorized "to borrow money or emit 
bills on the credit of the United States;" but it was declared that 
"each State retains its sovereignty, freedom, and independence, and 
every power, jurisdiction, and right which is not by this confed- 
eration expressly delegated to the United States in Congress assem- 
bled." Art. 2; art. 9, § 5; 1 Stat., 4, 7. Yet, upon the question 



164 CASES ON CONSTITUTIONAL LAW. 

whether, "under those articles, Congress, by virtue of the power to 
emit bills on the credit of the United States, had the power to make 
bills so emitted a legal tender, Chief Justice Marshall spoke very 
guardedly, saying: "Congress emitted bills of credit to a large 
amount, and did not, perhaps could not, make them a legal tender. 
This power resided in the States." Craig v. Missouri, 4 Pet., 410, 
435. But in the Constitution, as he had before observed in Mc- 
Culloch V. Maryland, "there is no phrase which, like the Articles 
of Confederation, excludes incidental or implied powers; and 
which requires that everything granted shall be expressly and 
minutely described. Even the Tenth Amendment, which was 
framed for the purpose of quieting the excessive jealousies which 
had been excited, omits the word ^expressly,' and declares only 
that the powers 'not delegated to the United States, nor prohib- 
ited to the States, are reserved to the States or to the people;' 
thus leaving the question, whether the particular power which 
may become the subject of contest has been delegated to the one 
government or prohibited to the other, to depend on a fair con- 
struction of the whole instrument. The men who drew and adopted 
this amendment had experienced the embarrassments resulting 
from the insertion of this word in the Articles of Confederation, 
and probably omitted it to avoid those embarrassments." 4 Wheat., 
406, 407. 

The sentence sometimes quoted from his opinion in Sturges 
V. Crowninshield had exclusive relation to the restrictions im- 
posed by the Constitution on the powers of the States, and espe- 
cial reference to the effect of the clause prohibiting the States 
from passing laws impairing the obligation of contracts, as will 
clearly appear by quoting the whole paragraph: "Was this gen- 
eral prohibition intended to prevent paper money? We are not 
allowed to say so, because it is expressly provided that no State 
shall 'emit bills of credit;' neither could these words be intended 
to restrain the States from enabling debtors to discharge their 
debts by the tender of property of no real value to the creditor, 
because for that subject also particular provision is made. Noth- 
ing but gold and silver coin can be made a tender in payment of 
debts." 4 Wlieat., 122, 204. 

Such reports as have come down to us of the debates in the Con- 
vention that framed the Constitution afford no proof of any gen- 
eral concurrence of oninion upon the subject before us. The 
adoption of the motion to strike out the words "and emit bills" 
from the clause "to borrow money and emit bills on the credit of 
the United States" is quite inconclusive. The philippic delivered 



JUILLIARD V. GREENMAN. 165 

before the Assembly of Maryland by Mr. Martin, one of the dele- 
gates from that State, who voted against the motion, and who de- 
clined to sign the Constitntion, can hardly be accepted as satis- 
factory evidence of the reasons or the motives of the majority 
of the Convention. See 1 Elliot's Debates, S-iS, 370, 376. Some 
of the members of the Convention, indeed, as appears by Mr. 
Madison's minutes of the debates, expressed the strongest opposi- 
tion to p'aper money. And Mr. Madison has disclosed the grounds 
of his own action, by recording that "this vote in the affirmative 
by Virginia was occasioned by the acquiescence of Mr. Madison, 
who became satisfied that striking out the words would not dis- 
able the government from the use of public notes, so far as they 
could be safe and proper; and would only cut off the pretext for 
a paper currency, and particularly for making the bills a tender, 
either for public or private debts." But he has not explained 
why he thought that striking out the words "and emit bills" would 
leave the power to emit bills, and deny the power to make them 
a tender in payment of debts. And it cannot be known how 
many of the other delegates, by whose vote the motion was adopted, 
intended neither to proclaim nor to deny the power to emit paper 
money, and were influenced by the argTiment of Mr. Gorham, who 
"was for striking out, without inserting any prohibition," and 
who said: "If the words stand, they may suggest and lead to the 
emission." "The power, so far as it will be necessary or safe, will 
be involved in that of borrowing." 5 Elliot's Debates, 43-t, 435, 
and note. And after the first clause of the tenth section of the 
first article had been reported in the form in which it now 
stands, forbidding the States to make anything but gold or silver 
coin a tender in payment of debts, or to pass any law impairing 
the obligation of contracts, when Mr. Gerry, as reported by Mr. 
Madison, "entered into observations inculcating the importance 
of public faith, and the propriety of the restraint put on the States 
from impairing the obligation of contracts,. alleging that Congress 
ought to be laid under the like prohibitions," and made a motion 
to that effect, he was not seconded. lb., 546. As an illustration 
of the danger of giving too much weight, upon such a question, 
to the debates and the votes in the Convention, it may also be 
observed that propositions to authorize Congress to grant charters 
of incorporation for national objects were strongly opposed, espe- 
cially as regarded banks, and defeated. lb., 440, 543, 544. The 
power of Congress to emit bills of credit, as well as to incorporate 
national banks, is now clearly established by decisions to which 
we shall presently refer. 



166 CASES ON CONSTITUTIONAL LAW. 

The words "to borrow money," as used in the Constitution, to 
designate a power vested in the national government, for the safety 
and welfare of the whole people, are not to receive that limited 
and restricted interpretation and meaning which they would have 
in a penal statute, or in an authority conferred, by law or by con- 
tract, upon trustees or agents for private purposes. 

The power "to borrow money on the credit of the United States" 
is the power to raise money for the public use on a pledgfe of the 
public credit, and may be exercised to meet either present or an- 
ticipated expenses and liabilities of the government. It includes 
the power to issue, in return for the money borrowed, the obliga- 
tions of the United States in any appropriate form, of stock, bonds, 
bills, or notes; and in whatever form they are issued, being instru- 
ments of the national government, they are exempt from taxa- 
tion by the governments of the several States. Weston v. Charles- 
ton City Council, 3 Pet., 449; Banks v. Mayor, 7 Wall., 16; Bank 
V. Supervisors, 7 Wall., 26. Congress has authority to issue these 
obligations in a form adapted to circulation from hand to hand 
in the ordinary transactions of commerce and business. In order 
to promote and facilitate such circulation, to adapt them to use 
as currency, and to make them more current in the market, it may 
provide for their redemption in coin or bonds, and may make 
them receivable in payment of debts to the government. So much 
is settled beyond doubt, and was asserted or distinctly admitted 
by the judges who dissented from the decision in the Legal Tender 
Cases, as well as by those who concurred in that decision. Veazie 
Bank v. Fenno, 8 Wall., 533, 548; Hepburn v. Griswold, 8 Wall., 
616, 636; Legal Tender Cases, 12 Wall., 543, 544, 560, 582, 610, 
613, 637. 

It is equally well settled that Congress has the power to incor- 
porate national banks, with the capacity, for their own profit as 
well as for the use of the government in its money transactions, of 
issuing bills which under ordinary circumstances pass from hand 
to hand as money at their nominal value, and which, when so 
current, the law has always recognized as a good tender in pay- 
ment of money debts, unless specifically objected to at the time of 
the tender. L^nited States Bank v. Bank of Georgia., 10 Wheat., 
333, 347; Ward v. Smith, 7 Wall., 447, 451. The power of Con- 
gress to charter a bank was maintained in McCulloch v. Maryland, 
4 Wlieat., 316, and in Osborn v. Ignited States Bank, 9 Wheat., 
738, chiefly upon the ground that it was an appropriate means 
for carrying on the money transactions of the government. But 
Chief Justice Marshall said: "'The currency which it circulates, 



JUILLIARD V. GREENMAN. 167 

by means of its trade with individuals, is believed to make it a 
more fit instrument for the purposes of government than it could 
otherwise be; and if this be true, the capacity to carry on this 
trade is a faculty indispensable to the character and objects of the 
institution." 9 Wheat., 864. And Mr. Justice Johnson, who 
concurred with the rest of the court in upholding the power to 
incorporate a bank, gave the further reason that it tended to give 
effect to ''that power over the currency of the country, which the 
framers of the Constitution evidently intended to give to Congress 
alone." lb., 873. 

The constitutional authority of Congi-ess to provide a currency 
for the whole country is now firmly established. In Veazie Bank 
v. Fenno, 8 Wall., 533, 548, Chief Justice Chase, in delivering the 
opinion of the court, said: "It cannot be doubted that under the 
Constitution the power to provide a circulation of coin is given to 
Congress. And it is settled by the uniform practice of the govern- 
ment, and by repeated decisions, that Congress may constitutionally 
authorize the emission of bills of credit." Congress, having under- 
taken to supply a national currency, consisting of coin, of treasury 
notes of the United States, and ot the bills of national banks, is 
authorized to impose on all State banks, or national banks, or pri- 
vate bankers, paying out the notes of individuals or of State banks, 
a tax of ten per cent, upon the amount of such notes so paid out. 
Veazie Bank v. Fenno, above cited; National Bank v. United 
States, 101 U. S., 1. The reason for this conclusion was stated by 
Chief Justice Chase, and repeated by the present Chief Justice, in 
these words: "Having thus, in the exercise of undisputed consti- 
tutional powers, undertaken to provide a currency for the whole 
country, it cannot be questioned that Congress may, constitution- 
ally, secure the benefit of it to the peoj^le by appropriate legisla- 
tion. To this end. Congress has denied the quality of legal tender 
to foreign coins, and has provided by law against the imposition of 
counterfeit and base coin on the community. To the same end. 
Congress may restrain, by suitable enactments, the circulation as 
money of any notes not issued under its own authority. Without 
this power, indeed, its attempts to secure a sound and uniform 
currency for the country must be futile." 8 Wall., 549; 101 U. S., 6. 

By the Constitution of the United States, the several States 
are prohibited from coining money, emitting bills of credit, or 
making anything but gold and silver coin a tender in payment 
of debts. But no intention can be inferred from this to deny to 
Congress either of these powers. Most of the powers granted to 
Congress are described in the eighth section of the first article; the 



168 CASES ON CONSTITUTIONAL LAW. 

limitations intended to be set to its powers, so as to exclude certain 
things which, might otherwise be taken to be included in the gen- 
eral grant, are defined in the ninth section; the tenth section is 
addressed to the States only. This section prohibits the States 
from doing some things which the United States are expressly pro- 
hibited from doing, as well as from doing some things which the 
United States are expressly authorized to do, and from doing some 
things which are neither expressly granted nor expressly denied 
to the United States. Congress and the States equally are express- 
ly prohibited from passing any bill of attainder or ex post facto 
law, or granting any title of nobility. The States are forbidden, 
while the President and Senate are expressly authorized, to make 
treaties. The States are forbidden, but Congress is expressly au- 
thorized to coin money. The States are prohibited from emitting 
bills of credit; but Congress, which is neither expressly author- 
ized nor expressly forbidden to do so, has, as we have already 
seen, been held to have the power of emitting bills of credit, and 
of making every provision for their circulation as currency, short 
of giving them the quality of legal tender for private debts — 
even by those who have denied its authority to give them this 
quality. 

It appears to us to follow, as a logical and necessary conse- 
quence, that Congress has the power to issue the obligations of the 
United States in such form, and to impress upon them such quali- 
ties as currency for the purchase of merchandise and the payment 
of debts, as accord with the usage of sovereign governments. The 
power, as incident to the power of borrowing money and issuing 
bills or notes of the government for money borrowed, of impress- 
ing upon those bills or notes the quality of being a legal tender 
for the payment of private debts, was a power universally under- 
stood to belong to sovereignty, in Europe and America, at the 
time of the framing and adoption of the Constitution of the United 
States. The governments of Europe, acting through the monarch 
or the legislature, according to the distribution of powers under 
their respective constitutions, had and have as sovereign a power 
of issuing paper money as of stamping coin. This power has been 
distinctly recognized in an important modern case, ably argued and 
fully considered, in which the Emperor of Austria, as King of Hun- 
gary, obtained from the English Court of Chancery an injunction 
against the issue in England, without his license, of notes pur- 
porting to be public paper money of Hungary. Austria v. Day, 
2 Giff., 628, and 3 D. F. & J., 217. The power of issuing bills 
of credit, and making them, at the discretion of the legislature, a 



JUILLIARD V. GREENMAN. 169 

tender in payment of private debts, had long been exercised in this 
country by the several Colonies and States; and during the Eevo- 
lutionary War the States, upon the recommendation of the Con- 
gress of the Confederation, had made the bills issued by Congress 
a legal tender. See Craig v. Missouri, 4 Pet., 435, 453; Briscoe v. 
Bank of Kentucky, 11 Pet., 257, 313, 334-336; Legal Tender 
Cases, 13 Wall., 557, 558, 623; Phillips on American Paper Cur- 
rency, passim. The exercise of this power not being prohibited to 
Congress by the Constitution, it is included in the power expressly 
granted to borrow money on the credit of the United States. 

This position is fortified by the fact that Congress is vested with 
the exclusive exercise of the analogous power of coining money 
and regulating the value of domestic and foreign coin, and also 
with the paramount power of regulating foreign and interstate 
commerce. Under the power to borrow money on the credit of the 
United States, and to issue circulating notes for the money bor- 
rowed, its power to define the quality and force of those notes as 
currency is as broad as the like power over a metallic currency 
under the power to coin money and to regulate the value thereof. 
Under the two powers, taken together. Congress is authorized to 
establish a national currency, either in coin or in paper, and to 
make that currency lawful money for all purposes, as regards the 
national government or private individuals. 

The power of making the notes of the United States a legal 
tender in payment of private debts, being included in the power 
to borrow money and to provide a national currency, is not defeated 
or restricted by the fact that its exercise may affect the value of 
private contracts. If, upon a just and fair interpretation of the 
whole Constitution, a particular power or authority appears to be 
vested in Congress, it is no constitutional objection to its existence, 
or to its exercise, that the property or the contracts of individuals 
may be incidentally affected. The decisions of this court, already 
cited, afford several examples of this. 

Upon the issue of stock, bonds, bills, or notes of the United 
States, the States are dej^rived of their power of taxation to the 
extent of the property invested by individuals in such obligations, 
and the burden of State taxation upon other private property is 
correspondingly increased. The ten per cent, tax, imposed by 
Congress on notes of State banks and of private bankers, not only 
lessens the value of such notes, but tends to drive them, and all 
State banks of issue, out of existence. The priority given to debts 
due to the United States over the private debts of an insolvent 



170 CASES ON CONSTITUTIONAL LAW. 

debtor diminishes the value of these debts, and the amount which 
their holders may receive out of the debtor's estate. 

So, under the power to coin money and to regulate its value, 
Congress may (as it did with regard to gold by the act of June 
28th, 1834, c. 95, and with regard to silver by the act of February 
28th, 1878, c. 20), issue coins of the same denominations as those 
already current by law, but of less intrinsic value than those, by 
reason of containing a less weight of the precious metals, and 
thereby enable debtors to discharge their debts by the pa5^ment of 
coins of the less real value. A contract to pay a certain sum in 
money, without any stipulation as to the kind of money in which 
it shall be paid, may always be satisfied by pa5Tnent of that sum in 
any currency which is lawful money at the place and time at which 
payment is to be made. 1 Hale P. C, 192-191; Bac. Ab. Tender, 
B. 2; Pothier, Contract of Sale, 'No. 416; Pardessus, Droit Com- 
mercial, ^^os. 204, 205; Searight v. Calbraith, 4 DalL, 324. As 
obsen'ed by Mr. Justice Strong, in delivering the opinion of the 
court in the Legal Tender Cases, "Every contract for the payment 
of money, simply, is necessarily subject to the constitutional power 
of the government over the currency, whatever that power may be, 
and the obligation of the parties is, therefore, assumed with refer- 
ence to that power." 12 Wall., 549. 

Congress, as the legislature of a sovereign nation, being ex- 
pressly empowered by the Constitution, "to lay and collect taxes, 
to pay the debts and provide for the common defense and general 
welfare of the United States," and "to borrow money on the credit 
of the United States," and "to coin money and regulate the value 
thereof and of foreign coin;" and being clearly authorized, as in- 
cidental to the exercise of those great powers, to emit bills of credit, 
to charter national banks, and to provide a national currency for 
the whole people, in the form of coin, treasury notes, and national 
bank bills; and the power to make the notes of the government a 
legal tender in payment of private debts being one of the powers 
belonging to sovereignty in other civilized nations, and not ex- 
pressly withheld from Congress by the Constitution; we are irre- 
sistibly impelled to the conclusion that the impressing upon the 
treasury notes of the United States the quality of being a legal 
tender in payment of private debts is an appropriate means, con- 
ducive and plainly adapted to the execution of the undoubted 
powers of Congress, consistent with the letter and spirit of the 
Constitution, and therefore, within the meaning of that instru- 
ment, "necessary and proper for carrying into execution the pow- 



JUILLIARD V. GREENMAN. 171 

ers vested by this Constitution in the government of the United 
States." 

Such being our conclusion in matter of law, the question wheth- 
er at any particular time, in war or in peace, the exigency is such, 
by reason of unusual and pressing demands on the resources of 
the government, or of the inadequacy of the supply of gold and 
silver coin to furnish the currency needed for the uses of the gov- 
ernment and of the people, that it is, as matter of fact, wise and 
expedient to resort to this means, is a political question, to be de- 
termined by Congress when the question of exigency arises, and 
not a Judicial question, to be afterwards passed upon by the courts. 
To quote once more from the judgment in McCulloch v. Maryland: 
"Wliere the law is not prohibited, and is really calculated to effect 
any one of the objects intrusted to the government, to undertake 
here to inquire into the degree of its necessity would be to pass the 
line which circumscribes the judicial department, and to tread on 
legislative ground." 4 Wheat., 423. 

It follows that the act of May 31st, 1878, c. 146, is constitutional 
and valid; and that the Circuit Court rightly held that the tender 
in treasury notes, reissued and kept in circulation under that act, 
was a tender of lawful money in payment of the defendant's debt 
to the plaintiff. Judgment affirmed. 

[Me. Justice Field delivered a dissenting opinion.] 

Note. — See articles in American Law Eeview, IV., 768, by Jus- 
tice 0. W. Holmes, and in Harvard Law Eeview, L, 73, by Prof. 
James B. Thayer, 



IV. COMMERCE. 



GIBBONS V. OGDEN. 

9 Wheaton, 1. Decided 1824. 

Eeroe to the court for the trial of impeachments and correction 
of errors of the State of ISTew York. Aaron Ogclen filed his bill in 
the court of chancery of that State, against Thomas Gibbons, set- 
ting forth the several acts of the legislature thereof, enacted for 
the purpose of securing to Kobert R. Livingston and Eobert Fulton 
the exclusive navigation of all the waters within the jurisdiction 
of that State, with boats moved by fire or steam, for a term of 
years which has not yet expired; and authorizing the chancellor 
to award an injunction, restraining any person whatever from 
navigating those waters with boats of that description. The bill 
stated an assignment from Livingston and Fulton to one John Ej. 
Livingston, and from him to the complainant, Ogden, of the right 
to navigate the waters between Elizabethtown, and other places 
in New Jersey, and the city of ISTew York; and that Gibbons, the 
defendant below, was in possession of two steamboats, called The 
Stoudinger and The Bellona, which were actually employed in 
running between New York and Elizabethtown, in violation of the 
exclusive privilege conferred on the complainant, and praying an 
injunction to restrain the said Gibbons from using the said boats, 
or any other propelled by fire or steam, in navigating the waters 
within the territory of ISTew York. The injunction having been 
awarded, the answer of Gibbons was filed, in which he stated that 
the boats employed by him were duly enrolled and licensed, to be 
employed in carrying on the coasting trade, under the act of con- 
gress, passed the 18th of February, 1793, c. 8 (1 Stats, at Large, 
305), entitled, "An act for enrolling and licensing ships and ves- 
sels to be employed in the coasting trade and fisheries, and for 
regulating the same." And the defendant insisted on his right, 
in virtue of such licenses, ta navigate the waters between Eliza- 
bethtown and the city of ISTew York, the said acts of the legislature 

172 



GIBBONS V. OGDEN. 17c 

of the State of New York to the contrary notwithstanding. At 
the hearing, the chancellor perpetuated the injunction, being of 
the opinion that the said acts were not repugnant to the consti- 
tution and laws of the United States, and were valid. This decree 
was affirmed in the court for the trial of impeachments and correc- 
tion of errors, which is the highest court of law and equity in the 
State, before which the cause could be carried, and it was there- 
upon brought to this court by writ of error. . . . 

Maeshall, C. J., delivered the opinion of the court, and, after 
stating the case, proceeded as follows: — 

The appellant contends that this decree is erroneous, because 
the laws which purport to give the exclusive privilege it sustains 
are repugnant to the constitution and laws of the United States. 

They are said to be repugnant, — 

1. To that clause in the constitution which authorizes congress 
to regulate commerce. 

2. To that which authorizes congress to promote the progress 
of science and useful arts. 

The State of New York maintains the constitutionality of these 
laws; and their legislature, their council of revision, and their 
judges, have repeatedly concurred in this opinion. It is supported 
by great names, — by names which have all the titles to considera- 
tion that virtue, intelligence, and office can bestow. No tribunal 
can approach the decision of this question without feeling a just 
and real respect for that opinion which is sustained by such author- 
ity; but it is the province of this court, while it respects, not to 
bow to it implicitly; and the judges must exercise, in the exam- 
ination of the subject, that understanding which Providence has 
bestowed upon them, with that independence which the people of 
the United States expect from this department of the government. 

As preliminary to the very able discussions of the constitution 
which we have heard from the bar, and as having some influence 
on its construction, reference has been made to the political situa- 
tion of these States, anterior to its formation. It has been said 
that they were sovereign, were completely independent, and were 
connected with each other only by a league. This is true. But, 
when these allied sovereigns, converted their league into a govern- 
ment, when they converted their congress of ambassadors, deputed 
to deliberate on their common concerns, and to recommend meas- 
ures of general utility, into a legislature; empowered to enact laws 
on the most interesting subjects, the whole character in which the 
States appear underwent a change, the extent of which must be 



174 CASES ON CONSTITUTIONAL LAW. 

determined by a fair consideration of the instrument by which, that 
change was effected. 

This instrument contains an enumeration of powers expressly 
granted by the people to their government. It has been said that 
these powers ought to be construed strictly. But why ought they 
to be so constructed? Is there one sentence in the constitution 
which gives countenance to this rule? In the last of the enumer- 
ated powers, that which grants, expressly, the means for carrying 
all others into execution, congress is authorized "to make all laws 
which shall be necessary and proper" for the purpose. But this 
limitation on the means which may be used, is not extended to the 
powers which are conferred; nor is there one sentence in the consti- 
tution, which has been pointed out by the gentlemen of the bar, or 
which we have been able to discern, that prescribes this rule. We 
do not, therefore, think ourselves justified in adopting it. What do 
gentlemen mean by a strict construction? If they contend only 
against that enlarged construction, which would extend words be- 
yond their natural and obvious import, we might question the 
application of the term, but should not controvert the principle. 
If they contend for that narrow construction which, in support 
of some theory not to be found in the constitution, would deny to 
the government those powers which the words of the grant, as 
usually understood, import, and which are consistent with the 
general views and objects of the instrument; for that narrow con- 
struction, which would cripple the government, and render it un- 
equal to the objects for which it is declared to be instituted, and 
to which the powers given, as fairly understood, render it com- 
petent; then we cannot perceive the propriety of this strict con- 
struction, nor adopt it as the rule by which the constitution is to 
be expounded. As men whose intentions require no concealment, 
generally employ the words which most directly and aptly express 
the ideas they intend to convey, the enlightened patriots who 
framed our constitution, and the people who adopted it, must be 
understood to have employed words in their natural sense, and to 
have intended what they have said. If, from the imperfection of 
human language, there should be serious doubts respecting the 
extent of any given power, it is a well settled rule that the objects 
for which it was given, especially when those objects are ex- 
pressed in the instrument itself, should have great influence in 
the construction. We know of no reason for excluding this rule 
from the present case. The grant does not convey power which 
might be beneficial to the grantor, if retained by himself, or 
which can enure solely to the benefit of the grantee; but is an 



GIBBONS V. OGDEN. 175 

investment of power for the general advantage, in the hands of 
agents selected for that purpose; which power can never be exer- 
cised by the people themselves, but must be placed in the hands of 
agents, or lie dormant. We know of no rule for construing the 
extent of such powers, other than is given by the language of the 
instrument which confers them, taken in connection with the pur- 
poses for which they were conferred. 

The words are: "Congress shall have power to regulate com- 
merce with foreign nations, and among the several States, and with 
the Indian tribes." The subject to be regulated is commerce; 
and our constitution being, as was aptly said at the bar, one of 
enumeration, and not of definition, to ascertain the extent of the 
power, it becomes necessary to settle the meaning of the word. 
The counsel for the appellee would limit it to traffic, to buying 
and selling, or the interchange of commodities, and do not admit 
that it comprehends navigation. This would restrict a general 
term, applicable to many objects, to one of its significations. 
Commerce, undoubtedly, is traffic, but it is something more, — it 
is intercourse. It describes the commercial intercourse between 
nations, and parts of nations, in all its branches, and is regulated 
by prescribing rules for carrying on that intercourse. The mind 
can scarcely conceive a system for regulating commerce between 
nations which shall exclude all laws concerning navigation, which 
shall be silent on the admission of the vessels of the one nation 
into the ports of the other, and be confined to prescribing rules for 
the conduct of individuals, in the actual employment of buying 
and selling, or of barter. 

If commerce does not include navigation, the government of 
the Union has no direct power over that subject, and can make no 
law prescribing what shall constitute American vessels, or requir- 
ing that they shall be navigated by American seamen. Yet this 
power has been exercised from the commencement of the govern- 
ment, has been exercised with the consent of all, and has been 
understood by all to be a commercial regulation. All America 
understands, and has uniformly understood, the word "commerce" 
to comprehend navigation. It was so understood, and must have 
been so understood, when the constitution was framed. The power 
over commerce, including navigation, was one of the primary ob- 
jects for which the people of America adopted their government, 
and must have been contemplated in forming it. The convention 
must have used the word in that sense, because all have under- 
stood it in that sense; and the attempt to restrict it comes too late. 

If the opinion that "commerce," as the word is used in the con- 



176 CASES ON CONSTITUTIONAL LAW. 

stitution, comprehends navigation also, requires any additional 
confirmation, that additional confinnation is, we think, furnished 
by the words of the instrument itself. It is a rule of construction 
acknowledged by all, that the exceptions from a power mark its 
extent; for it would be absurd, as well as useless, to except from a 
granted power that which was not granted, — ^that which the words 
of the grant could not comprehend. If, then, there are in the 
constitution plain exceptions from the power over navigation, plain 
inliibitions to the exercise of that power in a particular way, it is 
a proof tha-t those who made these exceptions, and prescribed these 
inhibitions, understood the power to which they applied as being 
granted. 

The 9th section of the 1st article declares that "no preference 
shall be given, by any regulation of commerce or revenue, to the 
ports of one State over those of another." This clause cannot be 
understood as applicable to those laws only which are passed for 
the purposes of revenue, because it is expressly applied to com- 
mercial regulations; and the most obvious preference which can 
be given to one port over another, in regulating commerce, relates 
to navigation. But the subsequent part of the sentence is still 
more explicit. It is, "nor shall vessels bound to or from one 
State, be obliged to enter, clear, or pay duties in another." These 
words have a direct reference to navigation. 

The universally acknowledged power of the government to im- 
pose embargoes must also be considered as showing that all Amer- 
ica is united in that construction which comprehends navigation in 
the word "commerce.*' Gentlemen have said, in argument, that 
this is a branch of the war-making power, and that an embargo is 
an instrument of war, not a regulation of trade. That it may be, 
and often is, used as an instrument of war, cannot be denied. An 
embargo may be imposed for the purpose of facilitating the equip- 
ment or manning of a fleet, or for the purpose of concealing the 
progress of an expedition preparing to sail from a particular port. 
In these, and in similar cases, it is a military instrument, and par- 
takes of the nature of war. But all embargoes are not of this de- 
scription. They are sometimes resorted to without a view to war, 
and with a single view to commerce. In such case an embargo is 
no more a war measure than a merchantman is a ship of war, be- 
cause both are vessels which navigate the ocean with sails and 
seamen. 

When congress imposed that embargo which, for a time, engaged 
the attention of every man in the United States, the avowed ob- 
ject of the law was the protection of commerce and the avoiding 



GIBBONS V. OGDEN. 177 

of war. By its friends and its enemies it was treated as a commer- 
cial, not as a war, measure. The persevering earnestness and zeal 
with which it was opposed, in a part of our country which supposed 
its interests to be vitally affected by the act, cannot be forgotten. 
A want of acuteness in discovering objections to a measure to which 
they felt the most deep-rooted hostility, will not be imputed to 
those who were arrayed in opposition to this. Yet they never sus- 
pected that navigation was no branch of trade, and was, therefore, 
not comprehended in the power to regulate commerce. They did, 
indeed, contest the constitutionality of the act, but on a principle 
which admits the construction for which the appellant contends. 
They denied that the particular law in question was made in pur- 
suance of the constitution, not because the power could not act 
directly on vessels, but because a perpetual embargo was the an- 
nihilation, and not the regulation, of commerce. In terms, they 
admitted the apj^licability of the words used in the constitution to 
vessels; and that, in a case which produced a degree and an extent 
of excitement calculated to draw forth every principle on which 
legitimate resistance could be sustained. No example could more 
strongly illustrate the universal understanding of the American 
people on this subject. 

The word used in the constitution, then, comprehends, and has 
been always understood to comprehend, navigation within its mean- 
ing; and a power to regulate navigation is as expressly granted as, 
if that term had been added to the word "commerce." 

To what commerce does this power extend? The constitution 
informs us, to commerce "with foreign nations, and among the 
several States, and with the Indian tribes." It has, we believe, 
been universally admitted that these words comprehend every 
species of commercial intercourse between the United States and 
foreign nations. No sort of trade can be carried on between this 
country and any other to which this power does not extend. It 
has been truly said that commerce, as the word is used in the con- 
stitution, is a unit, every part of which is indicated by the term. 
If this be the admitted meaning of the word, in its application to 
foreign nations, it must carry the same meaning throughout the 
sentence, and remain a unit, unless there be some plain intelligible 
cause which alters it. 

The subject to which the pov>^er is next applied is to commerce 
"among the several States." The word "among" means inter- 
mingled with. A thing which is among others is intermingled 
with them. Commerce among the States cannot stop at the ex- 
12 



178 CASES ON CONSTITUTIONAL LAW. 

ternal boundary line of each State, but may be introduced into 
the interior. 

It is not intended to say that these words comprehend that com- 
merce Avhich is completely internal, which is carried on between 
man and man in a State, or between different parts of the same 
State, and which does not extend to or affect other States. Such 
a power would be inconvenient and is certainly unnecessary. 

Com^prehensive as the word "among" is, it may very properly be 
restricted to that commerce which concerns more States than one. 
The phrase is not one which would probably have been selected 
to indicate the completely interior traffic of a State, because it is 
not an apt phrase for that purpose; and the enumeration of the 
particular classes of commerce to which the power was to be ex- 
tended would not have been made had the intention been to extend 
the power to every description. The enumeration presupposes 
something not enumerated; and that something, if we regard the 
language or the subject of the sentence, must be the exclusively 
internal commerce of a State. The genius and character of the 
whole government seem to be, that its action is to be applied to all 
the external concerns of the nation, and to those internal con- 
cerns which affect the States generally; but not to those which are 
completely within a particular State, which do not affect other 
Staites, and with which it is not necessary to interfere for the pur- 
pose of executing some of ithe general powers of the government. 
The completely internal commerce of a State, then, may be con- 
sidered as reserved for the State itself. 

But, in regulating commerce with foreign nations, the power of 
congress does not stop at the jurisdictional lines of the several 
States. It would be a very useless power if it could not pass those 
lines. The commerce of the United States with foreign nations is 
that of the whole United States. Every district has a right to 
participate in it. The deep streams which penetrate our country 
in every direction pass through the interior of almost every State 
in the Union, and furnish the means of exercising this right. If 
congress has the power to regulate it, thait power must be exer- 
cised whenever the subject exists. If it exists within the States, 
if a foreign voyage may commence or terminate at a port within a 
State, then the power of Congress may be exercised within a 
State. 

This principle is, if possible, still more clear when applied to 
commerce "among the several States." They either join each 
other, in which case they are separated by a mathematical line, or 
they are remote from each other, in which case other States lie 



GIBBONS V. OGDBN. 179 

between them. What is commerce ''among" them; and how is it 
to be conducted? Can a trading expedition between two adjoining 
States commence and terminate outside of each? And if the trad- 
ing intercourse be between two States remote from each other, 
must it not commence in one, terminate in the other, and probably 
pass through a third? Commerce among the States must, of neces- 
sity, be commerce with the States. In the reguhition of trade with 
the Indian tribes, the action of the law, especially when the consti- 
tution was made, was chiefly within a State . The power of congress, 
then, whatever it may be, must be exercised within the territorial 
jurisdiction of the several States. The sense of the nation on this 
subject is unequivocally manifested by the provisions made in the 
laws for transporting goods by land between Baltimore and Provi- 
dence, between New York and Philadelphia, and between Phila- 
delphia and Baltimore. 

We are now arrived at the inquiry, what is this power? 

It is the power to regulate; that is, to prescribe the rule by 
which commerce is to be governed. This power, like all others 
vested in congress, is complete in itself, may be exercised to its 
utmost extent, and acknowledges no limitations other than are 
prescribed in the cons'titution. These are expressed in plain terms, 
and do not affect the questions which arise in this case, or which 
have been discussed at the bar. If, as has always been understood, 
the sovereignty of congress, though limited to specified objects, is 
plenary as to those objects, the power over commerce with foreign 
nations, and among 'the several States, is vested in congress as ab- 
solutely as it would be in a single government, having in its consti- 
tution the same restrictions on the exercise of the power as are 
found in the Constitution of the United States. The wisdom and 
the discretion of congress, their identity with the people, and the 
influence which their constituents possess at elections, are, in this, 
as in many other instances, as that, for example, of declaring war, 
the sole restraints on which they have relied, to secure them from 
its abuse. They are the restraints on which the people must often 
rely solely, in all representative governments. 

The power of congress, then, comprehends navigation within 
the limits of every State in the Union, so far as that navigation 
may be, in any manner, connected with "commerce with foreign 
nations, or among the several Staites, or with the Indian tribes." 
It may, of consequence, pass the jurisdictional line of New York, 
and act upon the very waters to which the prohibition now under 
consideration applies. 

But it has been urged with great earnestness that, although the 



ISO CASES ON CONSTITUTIONAL LAW. 

jDower of congress to regulate commerce with foreign nations, and 
among the several States, be co-extensive with the subject itself, 
and have no other limits than are prescribed in the constitution, 
yet the States may severally exercise the same power within their 
respective jurisdictions. In support of this argument, it is said 
that they possessed it as an inseparable attribute of sovereignty 
before the formation of the constitution, and still retain it, except 
so far as they have surrendered it by that instrument; that this 
principle results from the nature of the government, and is secured 
by the tenth amendment; that an affirmative grant of power is 
not exclusive, unless in its own nature it be such that the continued 
exercise of it by the former possessor is inconsistent with the 
grant, and that this is not of that description. 

The appellant, conceding these postulates, except the last, con- 
tends that full power to regulate a particular subject implies the 
whole power, and leaves no residuum; that a grant of the whole 
is incompatible with the existence of a right in another to any 
part of it. 

Both parties have appealed to the constitution, to legislative 
acts, and judicial decisions; and have drawn arguments from all 
these sources to support and illustrate the propositions they re- 
spectively maintain. 

The grant of the power to lay and collect taxes is, like the power 
to regulate commerce, made in general terms, and has never been 
understood to interfere with the exercise of the same power 'by the 
States; and hence has been drawn an argument which has been 
applied to the question under consideration. But the two grants 
are not, it is conceived, similar in their terms or their nature. 
Although many of the powers formerly exercised by the States are 
transferred to the government of the Union, yet the State gov- 
ernments remain, and constitute a most important part of our 
sj^stem. The power of taxation is indispensable to their existence, 
and is a power which, in its own nature, is capable of residing in, 
and being exercised by, different authorities at the same time. 
"We are accustomed to see it placed, for different purposes, in dif- 
ferent hands. Taxation is the simple operation of taking small por- 
tions from a jjerpetually accumulating mass, susceptible of almost 
infinite division; and a power in one to take what is necessary for 
certain purposes, is not in its nature incompatible with a power in 
another to take what is necessary for other purposes. Congress is 
authorized to lay and collect taxes, etc., to pay the debts, and pro- 
vide for the common defense and general welfare of the United 
States. This does not interfere with the power of the States to 



GIBBONS V. OGDEN, 181 

tax for the support of their own governments; nor is the exercise 
of that power by the States an exercise of any, portion of the 
power that is granted to the United States. In imposing taxes 
for State purposes, they are not doing what congress is empowered 
to do. Congress is not empowered to tax for those purposes which 
are within the exclusive province of the States. When, then, each 
government exercises the power of taxation, neither is exercising 
the power of the other. : But when a State proceeds to regulate 
commerce with foreign nations, or among the several States, it is 
exercising the very power that is granted to congress, and is doing 
the very thing which congress is authorized to do. There is no 
analogy, then, between the power of taxation and the power of reg- 
ulating commerce. 

In discussing the question whether this power is still in the 
States, in the case under consideration, we may dismiss from it 
the inquiry, whether it is surrendered by the mere grant to con- 
gress, or is retained until congress shall exercise the power. We 
may dismiss that inquiry because it has been exercised, and the 
regulations which congress deemed it proper to make are now in 
full operation. The sole question is, can a State regulate com- 
merce with foreign nations and among the States while congress 
is regulating it? 

The counsel for the respondent answer this question in the 
affirmaitive, and rely very much on the restrictions in the 10th sec- 
tion as supporting their opinion. . . . 

These restrictions, then, are on the taxing power, not on that 
to regulate commerce; and presuppose the existence of that which 
they restrain, not of that which they do not pui-port to restrain. 

But the inspection laws are said to be regulations of com- 
merce, and are certainly recognized in the constitution as being 
passed in the exercise of a power remaining with the States. 

That inspection laws may have a remote and considerable influ- 
ence on commerce, will not be denied; but that a power to regu- 
late commerce is the source from which the right to pass them 
is derived, cannot be admitted. The object of inspection laws 
is to improve the quality of articles produced by the labor of 
a country, to fit them for exportation, or it may be for domestic 
use. They act upon the subject before it becomes an article of 
foreign commerce or of commerce among the States, and prepare 
it for that purpose. They form a portion of that immense mass 
of legislation which embraces everything within the territory of 
a State not surrendered to a general government; all which can 
be most advantageously exercised by the States themselves. In- 



182 CASES ON CONSTITUTIONAL LAW. 

spection laws^ quarantine laws, liealtli laws of every description, 
as well as laws, for regulating tlie internal commerce of a State, 
and tliose which respect turnpike roads, ferries, etc., are com- 
joonent parts of this mass. 

N'o direct general power over these objects is granted to con- 
gress; and, consequentl}^, they remain subject to State legisla- 
tion. If the legislative power of the Union can reach them, it 
must be for national purposes; it must be where the power is 
expressly given for a special purpose, or is clearly incidental to 
some power which is expressly given. It is obvious that the gov- 
ernment of the Union, in the exercise of its express powers, — 
that, for, example, of regulating commerce with foreign nations and 
among the States, — may use means that may also be employed by 
a State in the exercise of its acknowledged powers; that, for ex- 
ample, of regulating commerce within the State. If congress 
license vessels to sail from one port to another in the same State, 
the act is supposed to be necessarily incidental to the power ex- 
pressly granted to congress, and implies no claim of a direct power 
to regulate the purely internal commerce of a State, or to act 
directly on its system of police. So if a State, in passing laws 
on subjects acknowledged to be within its control, and with a 
view to those subjects, shall adopt a measure of the same character 
with one which congress may adopt, it does not derive its authority 
from the particular power which has been granted, but from some 
other which remains with the State, and may be executed by the 
same means. All experience shows that the same measures,, or 
measures scarcel}^ distinguishable from each other, may flow from 
distinct powers; but this does not prove that the powers themselves 
are identical. Although the means used in their execution may 
sometimes approach each other so nearly as to be confounded, there 
are O'ther situations in which they are sufficiently distinct to estab- 
lish their individuality. 

In our complex system, presenting the rare and difficult scheme 
of one general government whose action extends over the whole, 
but which possesses only certain enumerated pov/ers; and of 
numerous State governments, which retain and exercise all powers 
not delegated to the Union, contests respecting power must arise. 
Were it even otherwise, the measures taken by the respective gov- 
ernments to execute their acknowledged powers would often be 
of the same description, and might sometimes interfere. This, 
however, does not prove that the one is exercising, or has a right 
to exercise, the powers of the other. 



GIBBONS V. OGDEN. 183 

The acts of congress, passed in 1796 and 1799/ empowering and 
directing the officers of the general government to conform to, 
and assist in, the execution of the quarantine and health laws 
of a State, proceed, it is said, upon the idea that these laws are 
constitutional. It is undoubtedly true that they do proceed upon 
that idea; and the constitutionality of such laws has never, so 
far as we are informed, been denied. But they do not imply an 
acknowledgment that a State may rightfully regulate commerce 
with foreign nations, or among the States; for they do not imply 
that such laws are an exercise of that power, or enacted with a view 
to it. On the contrary, they are treated as quarantine and health 
laws, are so denominated in the acts of congress, and are considered 
as flowing from the acknowledged power of a State to provide for 
the health of its citizens. But as it was apparent that some of the 
provisions made for this purpose, and in virtue of this power, 
might interfere with, and be affected by, the laws of the United 
States made for the regulation of commerce, congress, in that 
spirit of harmony and conciliation which ought always to charac- 
terize the conduct of governments standing in the relation which 
that of the Union and those of the States bear to each other, has 
directed its officers to aid in the execution of these laws; and has, 
in some measure, adapted its own legislation to this object by 
making provisions in aid of those of the States. But in making 
these provisions the opinion is unequivocally manifested that con- 
gress may control the State laws, so far as it may be necessary to 
control them, for the regulation of commerce. 

The act passed in 1803,- prohibiting the importation of slaves 
into any State which shall itself prohibit their importation, im- 
plies, it is said, an admission that the States possessed the power to 
exclude or admit them; from which it is inferred that they pos- 
sess the same power with respect to other articles. 

If this inference were correct; if this power was exercised, not 
under any particular clause in the constitution, but in virtue of a 
general right over the subject of commerce, to exist as long as 
the constitution itself, — it might now be exercised. Any State 
might now import African slaves into its own territory. But it is 
obvious that the power of the States over this subject, previous 
to the year 1808, constitutes an exception to the power of con- 
gress to regulate commerce, and the exception is expressed in such 
words as to manifest clearly the intention to continue the pre- 
existing right of the States to admit or exclude for a limited pe- 

1 1 Stats, at Large, 474, 319. 2 3 stats, at Large, p. 529. 



184 CASES ON CONSTITUTIONAL LAW. 

riod. The words are, '"'tlie migration or importation of such, per- 
sons as any of tile States now existing shall think proper to 
admit, shall not be prohibited by the congress prior to the year 
1808." The whole object of the exception is, to preserve the power 
to those States which might be disposed to exercise it; and its 
language seems to the court to convey this idea unequivocally. The 
possession of this particular power, then, during the time limited 
in the constitution, cannot be admitted to prove the possession 
of any other similar power. 

It has been said that the act of August 7, 1789,^ acknowledges 
a concurrent power in the States to regulate the conduct of pilots, 
and hence is inferred an admission of their concurrent right with 
congress to regulate commerce with foreign nations and amongst 
the States. But this inference is not, we think, justified by the 
fact. Although congress cannot enable a State to legislate, con- 
gress may adopt the provisions of a State on any subject. Wlien 
•the government of tlie Union was brought into existence, it found 
a system for the regulation of its pilots in full force in every State. 
The act which has been mentioned adopts this system, and gives 
it the same validity as if its provisions had been specially made 
by congress. But the act, it may be said, is prospective also, and 
Ihe adoption of laws to be made in future presupposes the right 
in the maker to legislate on the subject. 

The act unquestionably manifests an intention to leave this 
subject entirely to the States until congress should think proper 
to interpose; but the ver}^ enactment of such a law indicates 
an opinion that it was necessar}-; that the existing system would 
not be applicable to the new state of things unless expressly applied 
to it by congress. But this section is confined to pilots within the 
'^9ljs, inlets, rivers, harbors, and ports of the United States," which 
are, of course, in whole or in part, also within the limits of some 
particular State. The acknowledged power of a State to regulate 
its police, its domestic trade, and to govern its own citizens, may 
enable it to legislate on this subject to a considerable extent; and 
the adoption of its system by congress, and the application of it 
to the whole subject of commerce, does not seem to the court to 
imply a right in the States so to apply it of their own authority. 
But the adoption of the State system being temporary, being only 
"until further legislative provision shall be made by congress," 
shows conclusively an opinion that congress could control the whole 
subject, and might adopt the system of the States, or provide one 
of its own. 

3 1 stats, at Large, 54. 



GIBBONS V. OGDEN. 185 

A State, it is said, or even a private citizen, may construct light- 
houses. But gentlemen must be aware that if this proves a power 
in a State to regulate commerce, it proves that the same power 
is in the citizen. States, or individuals who own lands, may, if 
not forbidden by law, ereot on those lands w^hat buildings they 
please; but this power is entirely distinct from that of regulating 
commerce, and may, we presume, be restrained if exercised so as 
to produce a public mischief. 

These acts were cited at the bar for the purpose of showing an 
opinion in congress that the States possess, concurrently with the 
legislature of the Union, the power to regulate commerce with 
foreign nations and among the States. Upon reviewing them, we 
think they do not establish the proposition they were intended 
to prove. They show the opinion that the States retain powers 
enabling them to pass the laws to which allusion has been made, 
not that those laws proceed from the particular power wdiicli has 
been delegated to congress. 

It has been contended by the counsel for the appellant that, as 
the word to "regulate" implies in its nature full power over the 
thing to be regulated, it excludes, necessarily, the action of all 
others that would perform the same operation on the same thing. 
That regulation is designed for the entire result, applying to 
those parts which remain as they were, as well as to those which 
are altered. It produces a uniform whole, which is as much dis- 
turbed and deranged by changing what the regulating power de- 
signs to leave untouched, as that on which it has operated. 

There is great force in this argument, and the court is not sat- 
isfied that it has been refuted. 

Since, however, in exercising the ]3ower of regulating their own 
purely internal affairs, whether of trading or police, the States may 
sometimes enact laws, the validity of which depends on their inter- 
fering with, and being contrary to, an act of congress passed in 
pursuance of the constitution, the court will enter upon the 
inquiry whether the laws of New York, as expounded by the high- 
est tribunal of that State, have, in their application to this case, 
come into collision with an act of congress, and deprived a citizen 
of a right to which that act entitles him. Should this collision 
exist, it will be immaterial whether those laws were passed in 
virtue of a concurrent power "to regulate commerce with foreign 
nart:ions and among the several States," or, in virtue of a power 
to regulate their domestic trade and police. In one case and the 
other, the acts of ISTew York must yield to the law of congress, and 



186 CASES ON CONSTITUTIONAL LAW. 

the decision sustaining the privilege they confer, against a right 
given by a law of the Union, must be erroneous. . . . 

In pursuing this inquiry a-t the bar, it has been said that the 
constitution does not confer the right of intercourse between State 
and State. That right derives its source from those laws whose 
authority is acknowledged by civilized man throughout the world. 
This is true. The constitution found it an existing right, and 
gave to congress the power to regulate it. In the exercise of this 
power, congress has passed "An act for enrolling or licensing ships 
or vessels to be employed in the coasting trade and fisheries, and 
for regulating the same." The counsel for the respondent contend 
that this act does not give the right to sail from port to port, but 
confines itself to regulating a pre-existing right, so far only as to 
confer certain privileges on enrolled and licensed vessels in its 
exercise. 

It will at once occur that when a legislature attaches certain 
privileges and exemptions to the exercise of a right over which 
its control is absolute, the law must imply a power to exercise the 
right. The privileges are gone if the right itself be anniliilated. 
It would be contrar}' to all reason and to the course of human 
affairs to say that a State is unable to strip a vessel of the particu- 
lar privileges attendant on the exercise of a right, and yet may 
annul the right itself; that the State of iSTew York cannot pre- 
vent an enrolled and licensed vessel proceeding froni Elizabeth- 
town, in ISTew Jersey, to N'ew York, from enjoying, in her course 
and on her entrance into port, all the privileges conferred by the act 
of congress, but can shut her up in her own port, and prohibit 
altogether her entering the waters and ports of another State. 
To the court it seems very clear that the whole act on the subject 
of the coasting trade, according to those principles which govern 
the construction of statutes, implies unequivocally an authority 
to licensed vessels to carry on the coasting trade. 

But we will proceed briefly to notice those sections which bear 
more directly on the subject. 

The first section declares that vessels enrolled by virtue of a pre- 
vious law, and certain other vessels, enrolled as described in that 
act, and having a license in force, as is by the act required, "and 
no others, shall be deemed ships or vessels of the United States, 
entitled to the privileges of ships or vessels employed in the coast- 
ing trade." 

This section seems to the court to contain a positive enactment 
that the vessels it describes shall be entitled to the privileges of 
ships or vessels employed in the coasting trade. These privileges 



GIBBONS V. OGDBN. 187 

cannot be separated from the trade, and cannot be enjoyed unless 
the trade may be prosecuted. The grant of the privilege is an idle, 
empty form, conveying nothing, unless it convey the right to 
which the privilege is attached, and in the exercise of which its 
whole value consists. To construe these words otherwise than as 
entitling the ships or vessels described to carry on the coasting 
trade would be, we think, to disregard the apparent intent of 
the act. 

The 4th section directs the proper officer to grant to a vessel 
qualified to receive it, "a license for carrying on the coasting 
trade;" and prescribes its form. After reciting the compliance 
of the applicant with the previous requisites of the law, the opera- 
tive words of the instrument are, "license is hereby granted for the 
said steamboat Bellona to be employed in carrying on the coast- 
ing trade for one year from the date hereof, and no longer." 

These are not the words of the officer; they are the words of 
the legislature; and convey as explicitly the authority the act 
intended to give, and operate as effectually, as if they had been 
inserted in any other part of the act than in the license itself. 

The word "license" means permission, or authority; and a 
license to do any particular thing is a permission or authority to 
do that thing; and if granted by a person having power to grant 
it, transfers to the grantee the right to do whatever it purports 
to authorize. It certainly transfers to him all the right which 
the grantor can transfer to do what is within the terms of the 
license. Would the validity or effect of such an instrument be 
questioned by the respondent if executed by persons claiming reg- 
ularly under the laws of New York? 

The license must be understood to be what it purports to be, — 
a legislative authority to the steamboat Bellona "to be employed 
in carrying on the coasting trade for one year from this date." 

It has been denied that these words authorize a voyage from 
New Jersey to New York. It is true that no ports are specified; 
but it is equally true that the words used are perfectly intelligible, 
and do confer such authority as unquestionably as if the ports 
had been mentioned. The coasting trade is a term well under- 
stood. The law has defined it; and all know its meaning per- 
fectly. The act describes, with great minuteness, the various op- 
erations of a vessel engaged in it; and it cannot, we think, be 
doubted that a voyage from New Jersey to New York is one of 
those operations. 

Notwithstanding the decided language of the license, it has 



188 CASES ON CONSTITUTIONAL LAW. 

also been maintained that it gives no right to trade, and that its 
sole purpose is to confer the American character. 

The answer given to this argument, that the American char- 
acter is conferred by the enrolhnent and not by the license, is, 
we think, founded too clearly in the words of the law to require 
the support of any additional observations. The enrollment of 
vessels designed for the coasting trade corresponds precisely with 
the registration of vessels designed for the foreign trade, and re- 
quires every circumstance which can constitute the American 
character. The license can be granted only to vessels already 
enrolled, if they be of the burden of twenty tons and upwards, and 
requires no circumstance essential to the American character. The 
object of the license, then, cannot be to ascertain the character of 
the vessel, but to do what it professes to do; that is, to give per- 
mission to a vessel already proved by her enrollment to be Amer- 
ican to carry on the coasting trade. 

But if the license be a permit to carry on the coasting trade, 
the respondent denies that these boats were engaged in that trade, 
or that the decree under consideration has restrained them from 
prosecuting it. The boats of the appellant were, we are told, 
employed in the transportation of passengers, and this is no part 
of that commerce which congress may regutate. 

If, as our whole course of legislation on this subject shows, the 
power of congress has been universally understood in America to 
comprehend navigation, it is a very persuasive, if not a conclu- 
sive, argument to prove that the construction is correct; and if 
it be correct, no clear distinction is perceived between the power 
to regulate vessels employed in transporting men for hire, and 
property for hire. The subject is transferred to congress, and no 
exception to the grant can be admitted which is not proved by the 
words or the nature of the thing. A coasting vessel employed 
in the transportation of passengers is as much a portion of the 
American marine as one employed in the transportation of a cargo; 
and no reason is perceived why such vessel should be withdrawn 
from the regulating power of that government, which has been 
thought best fitted for the purpose generally. The provisions of 
the law respecting native seamen and respecting ownership, are 
as applicable to vessels carrying men as to vessels carrying man- 
ufactures; and no reason is perceived why the power over the 
subject should not be placed in the same hands. The argument 
urged at the bar rests on the foundation that the power of con- 
gress does not extend to navigation as a branch of commerce, and 
can only be applied to that subject incidentally and occasionally. 



GIBBONS V. OGDEN. 189 

But if that foundation be removed, we must show some plain, 
intelligible distinction, supported by the constitution, or by rea- 
son, for discriminating between the power of congress over vessels 
employed in navigating the same seas. We can perceive no such 
distinction. 

If we refer to the constitution, the inference to be drawn from 
it is rather against the distinction. The section which restrains 
congress from prohibiting the migration or importation of such 
persons as any of the States may think proper to admit, until the 
year 1808, has always been considered as an exception from the 
power to regulate commerce, and certainly seems to class migra- 
tion with importation. Migration applies as appropriately to vol- 
untary, as importation does to involuntary arrivals; and so far 
as an exception from a power proves its existence, this section 
proves that the power to regulate commerce applies equally to 
the regulation of vessels employed in transporting men who pass 
from place to place voluntarily, and to those who pass involun- 
tarily. 

If the power reside in congress, as a portion of the general grant 
to regulate commerce, then acts applying that power to vessels 
generally must be construed as comprehending all vessels. If none 
appear to be excluded by the language of the act, none can be 
excluded by construction. Vessels have always been employed, to 
a greater or less extent, in the transportation of passengers, and 
have never been supposed to be, on that account, withdrawn from 
the control or protection of congress. Packets which ply along 
the coast, as well as those which make voyages between Europe 
and America, consider the transportation of passengers as an im- 
portant part of their business. Yet it has never been suspected 
that the general laws of navigation did not apply to them. 

The Duty Act, sections 23 and 46,^ contains provisions respect- 
ing passengers, and shows that vessels which transport them have 
the same rights, and must perform the same duties, with other 
vessels. They are governed bv the general laws of navigation. 

In the progress of things, this seems to have grown into a par- 
ticular employment, and to have attracted the particular atten- 
tion of government. Congress was no longer satisfied with com- 
prehending vessels engaged specially in this business within those 
provisions which were intended for vessels generally; and on the 
2d of March, 1819, passed "An act regulating passenger ships and 
vessels."^ This wise and humane law provides for the safety and 

1 1 Stats, at Large, 644, 661. 2 3 Stats, at Large, 488. 



190 CASES ON CONSTITUTIONAL LAW. 

comfort of passengers, and for the communication of everything 
concerning them which may interest tlie government, to the de- 
partment of State, but makes no provision concerning the entry 
of the vessel, or her conduct in the waters of the United States. 
This, we think, shows conclusively the sense of congress (if, in- 
deed, any evidence to that point could be required), that the pre- 
existing regulations comprehended passenger ships among others: 
and in prescribing the same duties, the legislature must have con- 
sidered them as possessing the same rights. 

If, then, it were even true, tliat The Bellona and The Stoudinger 
were employed exclusively in the conveyance of passengers be- 
tween 'New York and New Jersey, it would not follow that this 
occupation did not constitute a part of the coasting trade of the 
United States, and was not protected by the license annexed to 
the answer. But we cannot perceive how the occuj)ation of these 
vessels can be drawn into question in the case before the court. 
The laws of New York, which grant the exclusive privilege set up 
by the respondent, take no notice of the employment of vessels, 
and relate only to the principle by which they are propelled. Those 
laws do not inquire whether vessels are engaged in transport- 
ing men or merchandise, but whether they are moved by steam 
or wind. If by the former, the waters of New York are closed 
against them, though their cargoes be dutiable goods, which the 
laws of the United States permit them to enter and deliver in 
New York. If by the latter, those waters are free to them, though, 
they should carry passengers only. In conformity with the law, 
is the bill of the plaintiff in the state court. The bill does not 
complain that The Bellona and The Stoudinger carry passengers, 
but that they are moved by steam. This is the injury of which 
he complains, and is the sole injury against the continuance of 
which he asks relief. The bill does not even allege, specially, that 
those vessels were employed in the transportation of passengers, 
but says, generally, that they were employed "in the transporta- 
tion of passengers, or otherwise." The answer avers only that 
tliey are employed in the coasting trade, and insists on the right to 
carry on any trade authorized by the license. No testimony is 
taken, and the writ of injunction and decree restrain these licensed 
vessels, not from carrying passengers, but from being moved 
through the waters of New York by steam, for any purpose what- 
ever. 

The questions, then, whether the conveyance of passengers be 
a part of the coasting trade, and whether a vessel can be protected 
in that occupation by a coasting license, are not, and cannot be. 



GIBBONS V. OGDEN. 191 

raised in this case. The real and sole question seems to be, whether 
a steam macliine, in actual use, deprives a vessel of the privileges 
conferred by a license. 

In considering this question, the first idea which presents itself, 
is that the laws of congress for the regulation of commercej do 
not look to the principle of which vessels are moved. That sub- 
ject is left entirely to individual discretion; and in that vast and 
complex system of legislative enactment concerning it, which em- 
braces everything which the legislature thought it necessary to 
notice, there is not, we believe, one word respecting the peculiar 
principle by which vessels are propelled through the water, except 
what may be found in a single act,''' granting a particular privilege 
to steamboats. With this exception, every act, either prescribing 
duties, or granting privileges, applies to every vessel, whether 
navigated by the instrumentality of wind or fire, of sails or ma- 
chinery. The whole weight of proof, then, is thrown upon him 
who would introduce a distinction to which the words of the law 
give no countenance. 

If a real difference could be admitted to exist between vessels 
carrying passengers and others, it has already been observed that 
there is no fact in this case which can bring up that question. 
And, if the occupation of steam-boats be a matter of such general 
notoriety that the court may be presumed to know it, although 
not specially informed by the record, then we deny that the trans- 
portation of passengers is their exclusive occupation. It is a mat- 
ter of general history, that, in our western waters, their principal 
employment is the transportation of merchandise; and all know, 
that in the waters of the Atlantic they are frequently so em- 
ployed. 

But all inquiry into this subject seems to the court to be put 
completely at rest, by the act already mentioned, entitled, "An 
act for the enrolling and licensing of steamboats." 

This act authorizes a steamboat employed, or intended to be 
employejd, only in a river or bay of the United States, owned 
wholly or in part by an alien, resident within the United States, to 
be enrolled and licensed as if the same belonged to a citizen of 
the United States. 

This act demonstrates the opinion of congress, that steamboats 
may be enrolled and licensed, in common with vessels using sails. 
They are, of course, entitled to the same privileges, and can no 
more be restrained from navigating waters, and entering ports 

3 2 Stats, at Large, 694. 



192 CASES ON CONSTITUTIONAL LaW. 

which are free to such vessels, than if tliey were wafted on their 
voyage by the winds, instead of being propelled by the agency of 
fire. The one element may be as legitimately used as the other, 
for every commercial purpose authorized by the laws of the 
Union; and the act of a State inliibiting the use of either to any 
vessel having a license under the act of congress, comes, xve think, 
in direct collision with that act. 

As this decides the cause, it is unnecessary to enter in an 
examination of that part of the constitution which empowers con- 
gress to promote the progress of science and the useful arts. 

[Me. Justice Johnson delivered a concurring opinion.] 

. Note. — In the courts of ISTew York, the State law had been 
upheld as constitutional by Chancellor Kent and his associates. 
The reasons for Kent's opinion are given in his Commentaries, i., 
433, 438. 



BEOWX ET AL. v. THE STATE OF MAEYLAXD. 

12 Wheaton, 419. Decided 1827. 

Eeeoe to the court of appeals of Maryland. 

The case is stated in the opinion of the court. . . . 

Maeshall, C. J., delivered the opinion of the court. 

This is a writ of error to a judgment rendered in the court of 
appeals of Mar3dand, affirming a judgment of the city court of Bal- 
timore, on an indictment found in that court against the plaintiffs 
in error, for violating an act of the legislature of Maryland. The 
indictment was founded on the 2d section of that act, which is 
in these words: "And be it enacted that all importers of foreign 
articles or commodities, of dry goods, wares, or merchandise, by 
bale or package, or of wine, rum, brandy, whiskey, and other dis- 
tilled spirituous liquors, &c., and other persons selling the same by 
wholesale, bale or package, hogshead, barrel, or tierce, shall, be- 
fore they are authorized to sell, take out a license, as by the orig- 
inal act is directed, for which they shall pay fifty dollars; and 
in case of neglect or refusal to take out such license, shall be 
subject to the same penalties and forfeitures as are prescribed by 
the original act to which this is a supplement." The indictment 
charges the plaintiffs in error with having imported and sold one 



BROWN V. STATE OF MARYLAND. 193 

package of foroigi-i dry goods without having license to do so. A 
judgment was rendered against them, on demurrer, for the penalty 
which the act prescribes for the offense; and that judgment is now 
before this court. 

This cause depends entirely on the question whether the legisla- 
ture of a State can constitutionally require the importer of foreign 
articles to take out a license from the State, before he shall be 
permitted to sell a bale or package so imported. 

It has been truly said, that the presumption is in favor of every 
legislative act, and that the whole burden of proof lies on him 
who denies its constitutionality. The plaintiffs in error take the 
burden upon themselves, and insist that the act under consid- 
eration is repugnant to two provisions in the constitution of the 
United States. 

1. To that which declares that "no State shall, without the 
consent of congress, lay any imposts, or duties on imports or 
exports, except what may be absolutely necessary for executing 
its inspection laws." 

2. To that which declares that congress shall have power "to 
regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes." 

1. The' first inquiry is into the extent of the prohibition upon 
States "to lay any imposts or duties on imports or exports." The 
counsel for the State of Maryland would confine this prohibition 
to laws imposing duties on the act of importation or exporta- 
tion. The counsel for the plaintiffs in eiTor give them a much 
wider scope. 

In performing the delicate and important duty of construing 
clauses in the constitution of our country, which involve confiict- 
ing powers of the government of the Union, and of the respect- 
ive States, it is proper to take a view of the literal meaning of 
the words to be expounded, of their connection with other words, 
and of the general objects to be accomplished by the prohibitory 
clause, or by the grant of power. 

What, then, is the meaning of the words, "imposts, or duties 
on imports or exports?" 

An impost, or duty on imports, is a custom or a tax levied on 
articles brought into a country, and is most usually secured be- 
fore the importer is allowed to exercise his rights of ownership 
over them, because evasions of the law can be prevented more 
certainly by executing it while the articles are in its custody. It 
would not, however, be less an impost or duty on the articles, if 
it were to be levied on them after they were landed. The policy 



194 CASES ON CONSTITUTIONAL LAW. 

and conseqiTent practice of levying or securing the duty before, or 
on entering the port, does not limit the power to that state of 
things, nor, consequently, the prohibition, uiik i^ the true mean- 
ing of the clause so confines it. What, then, a::c "imports"? The 
lexicons inform us, they are "things imported." If we nppeal to 
usage for the meaning of the word, we sha'l receive the same 
answer. They are the articles themselves which are brought into 
the country. "A duty on imports," then, is not merely a duty 
on the act of importation, but is a duty on the thing imported. 
It is not, taken in its literal sense, confined to a duty levied while 
the article is entering the country, but extends to a duty levied 
after it has entered the country. The succeeding words of the 
sentence which limit the prohibition, show the extent in which 
it was understood. The limitation is, "except what may be abso- 
lutely necessary for executing its inspection laws." Now, the in- 
spection laws, so far as they act upon articles for exportation, are 
generally executed on land, before the article is put on board the 
vessel; so far as they act upon importations, they are generally 
executed upon articles which are landed. The tax or duty of 
inspection, then, is a tax which is frequently, if not always paid 
for service performed on land, while the article is in the bosom 
of the country. Yet this tax is an exception to the prohibition 
on the States to lay duties on imports or exports. The exception 
was made because the tax would otherwise have been within the 
prohibition. 

If it be a rule of interpretation to which all assent, that the 
exception of a particular thing from general words, proves that, in 
the opinion of the lawgiver, the thing excepted would be within 
the general clause had the exception not been made, we know 
no reason why this general rule should not be as applicable to 
the constitution as to other instruments. If it be applicable, then 
this exception in favor of duties for the support of inspection laws, 
goes far in proving that the framers of the constitution classed 
taxes of a- similar character with those imposed for the purposes 
of inspection, with duties on imports and exports, and supposed 
them to be prohibited. 

If we quit this narrow view of the subject, and passing from the 
literal interpretation of the words, look to the objects of the pro- 
hibition,, we find no reasoij. for withdrawing the act under con- 
sideration from its operation. 

From the vast inequality between the different States of the 
confederacy, as to commercial advantages, few subjects were viewed 
with deeper interest, or excited more irritation, than the manner 



BROWN V. STATE OF MARYLAND. 195 

in which the several States exercised, or seemed disposed to exer- 
cise, the power of laying duties on imports. From motives which 
were deemed sufficient by the statesmen of that day, the general 
power of taxation, indispensably necessary as it was, and jealous 
as the States were of any encroachment upon it, was so far abridged 
as to forbid them to touch imports or exports, with the single ex- 
ception which has been noticed. Wliy are they restrained from 
imposing these duties? Plainly, because, in the general opinion, 
the interest of all would be best promoted by placing that whole 
subject under the control of congress. Whether the prohibition 
to "lay imposts, or duties on imports or exports," proceeded from 
an apprehension that the power might be so exercised as to dis- 
turb that equality among the States which was generally advan- 
tageous, or that harmony between them which it was desirable 
to preserve, or to maintain unimpaired our commercial connec- 
tions with foreign nations, or to confer this source of revenue on 
the government of the Union, or whatever other motive might 
have induced the prohibition, it is plain that the object would 
be as completely defeated by a power to tax the article in the 
hands of the importer the instant it was landed, as by a power to 
tax it while entering the port. There is no difference, in effect, 
between a power to prohibit the sale of an article and a power 
to prohibit its introduction into the country. The one would 
be a necessary consequence of the other. No goods would be 
imported if none could be sold. No object of any description 
can be accomplished by laying a duty on importation, which may 
not be accomplished with equal certainty by laying a duty on the 
thing imported in the hands of the importer. It is obvious, that 
the same power which imposes a light duty, can impose a very 
heavy one, one which amounts to a prohibition. Questions of 
power do not depend on the degree to which it may be exercised. 
If it may be exercised at all, it must be exercised at the will 
of those in whose hands it is placed. If the tax may be levied 
in this form by a State, it may be levied to an extent which will 
defeat the revenue by impost, so far as it is drawn from impor- 
tations into the particular State. We are told that such wild 
and irrational abuse of power is not to be apprehended, and is 
not to be taken into view when discussing its existence. All 
power may be abused; and if the fear of its abuse is to constitute 
an argument against its existence, it might be urged against the 
existence of that which is universally acknowledged, and which is 
indispensable to the general safety. The States will never be so 
mad as to destroy their own commerce, or even to lessen it. 



196 CASES ON CONSTITUTIONAL LAW. 

We do not dissent from these general propositions. We do not 
suppose any State would act so unwisely. But we do not place 
the question on that ground. 

These arguments apply with precisely the same force against 
the whole prohibition. It might, with the same reason, be said 
that no State would be so blind to its own interests as to lay 
duties on importation which, would either prohibit or diminish 
its trade. Yet the framers of our constitution have thought this 
a power which no State ought to exercise. Conceding, to the full 
extent which is required, that every State would, in its legislation 
on this subject, provide judiciously for its own interests, it cannot 
be conceded that each would respect the interests of others. A 
duty on imports is a tax on the article which is paid by the con- 
sumer. The great importing States would thus levy a tax on the 
non-importing States, which would not be less a tax because their 
interest would afford ample security against its ever being so 
heavy as to expel commerce from their ports. This would neces- 
sarily produce countervailing measures on the part of those States 
whose situation was less favorable to importation. For this, among 
other reasons, the whole power of laying duties on imports was, 
with a single and slight exception, taken from the States. When 
we are inquiring whether a particuar act is within this prohi- 
bition, the question is not, whether a State may so legislate as to 
hurt itself, but whether the act is within the words and mischief 
of the prohibitory clause. It has already been shown, that a tax 
on the article in the hands of the importer, is within its words; 
and we think it too clear for controversy, that the same tax is 
within its mischief. We think it unquestionable, that such a tax 
has precisely the same tendency to enhance the price of the article, 
as if imposed upon it while entering the port. 

The counsel for the State of Maryland, insist, with great rea- 
son, that if the words of the prohibition be taken in their utmost 
latitude, they will abridge the power of taxation, which all admit 
to be essential to the States, to an extent which has never yet 
been suspected, and will deprive them of resources which are nec- 
essary to supply revenue, and which they have heretofore been 
admitted to possess. These words must, therefore, be construed 
Avith some limitation; and, if this be admitted, they insist that 
entering the country is the point of time when the prohibition 
ceases, and the power of the State to tax commences. 

It may be conceded, that the words of the prohibition ought 
not to be pressed to their utmost extent; that in our complex 
system, the object of the powers conferred on the government of 



BROWN V. STATE OF MARYLAND. 19^ 

the Union, and the nature of the often conflicting powers which 
remain in the States, must always be taken into view, and may 
aid in expounding the words of any particular clause. But, while 
we admit that sound principles of construction ought to restrain 
all courts from carrying the words of the prohibition beyond the 
object the constitution is intended to secure; that there must be 
a point of time when the prohibition ceases, and the power of the 
State to tax commences; we cannot admit that this point of time 
is the instant that the article enters the country. It is, we think, 
obvious that this construction would defeat the prohibition. 

The constitutional prohibition on the States to lay a duty on 
imports, a jDrohibition which a vast majority of them must feel 
an interest in preserving, may certainly come in conflict with their 
acknowledged power to tax persons and property within their 
territory. The power, and the restriction on it, though quite 
distinguishable when they do not approach each other, may yet, 
like the intervening colors between white and black, approach so 
nearly as to perplex the understanding, as colors perplex the vision 
in marking the distinction between them. Yet the distinction 
exists, and must be marked as the cases arise. Till they do arise, 
it might be premature to state any rule as being universal in its 
application. It is suflicient for the present to say, generally, that 
when the importer has so acted upon the thing imported, that it 
has become incorporated and mixed up with the mass of property 
in the country, it has, perhaps, lost its distinctive character as an 
import, and has become subject to the taxing power of the State; 
but while remaining the property of the importer, in his ware- 
house, in the original form or package in which it was imported, 
a tax upon it is too plainly a duty on imports to escape the prohi- 
bition in the constitution. 

The counsel for the plaintiffs in error contend that the importer 
purchases, by payment of the duty to the United States, a right 
to dispose of his merchandise, as well as to bring it into the 
country; and certainly the argument is supported by strong rea- 
son, as well as by the practice of nations, including our oAvn. The 
object of importation is sale; it constitutes the motive for paying 
the duties; and if the United States possess the power of confer- 
ring the right to sell, as the consideration for which the duty is 
paid, every principle of fair dealing requires that they should be 
understod to confer it. The practice of the most commercial na- 
tions conforms to this idea. Duties, according to that practice, are 
charged on those articles only which are intended for sale or con- 
sumption in the country. Thus, sea stores, goods imported and 



198 CASES ON CONSTITUTIONAL LAW. 

re-exported in the same vessel, goods landed and carried over land 
for the purpose of being re-exported from some other port, goods 
forced in by stress of weather, and landed, but not for sale, are 
exempted from the payment of duties. The whole course of legis- 
lation on the subject shows that, in the opinion of the legislature, 
the right to sell is connected with the payment of duties. 

The counsel for the defendant in error have endeavored to illus- 
trate their proposition, that the constitutional prohibition ceases 
the instant the goods enter the country, by an array of the conse- 
quences which they suppose must follow the denial of it. If the 
importer acquires the right to sell by the payment of duties, he 
may, they say, exert that right when, where, and as he pleases, 
and the State cannot regulate it. He may sell by retail, at auction, 
or as an itinerant peddler. He may introduce articles, as gun- 
powder, which endanger a cit}', into the midst of its population; 
he may introduce articles which endanger 'the public health, and 
the power of self-preservation is denied. An importer may bring 
in goods, as plate, for his own use, and thus retain much valuable 
property exempt from taxation. 

These objections to the principle, if well founded, would cer- 
tainly be entitled to serious consideration. But we think they 
will be found, on examination, not to belong necessarily to the 
principle, and, consequently, not to prove that it may not be re- 
sorted to with safety as a criterion by which to measure the extent 
of the prohibition. 

This indictment is against the importer, for selling a package of 
dry goods in the form in which it was imported, without a license. 
This state of things Is changed if he sells them, or otherwise 
mixes them with the general property of the State, by breaking 
up his packages, and traveling with them as an itinerant peddler. 
In the first case, the tax intercepts the import, as an import^ in 
its way to become incorporated with the general mass of property, 
and denies it the privilege of becoming so incorporated until it 
shall have contributed to the revenue of the State. It denies to 
the importer the right of using the privilege which he has pur- 
chased from the United States, until he shall have also purchased 
it from the State. In the last cases, the tax finds the article al- 
ready incorporated with the mass of property by the act of the 
importer. He has used the privilege he has purchased, and has 
himself mixed them up with the common mass, and the law may 
treat them as it finds them. The same observations apply to plate, 
or other furniture used by the importer. 

So, if he sells by auction. Auctioneers are persons licensed by 



BROWN V. STATE OF MARYLAND. 199 

the State, and if the importer chooses to employ them, he can as 
little object to paying for this service, as for any other for which 
he may apply to an officer of the State. The right of sale may 
very well he annexed to importation, without annexing to it, also, 
the privilege of using the officers licensed by the State to make 
sales in a peculiar way. 

The power to direct the removal of gunpowder is a branch of 
the police power, which unquestionably remains, and ought to 
remain, with the States. If the possessor stores it himself out of 
town, the removal cannot be a duty on imports, because it con- 
tributes nothing to the revenue. If he prefers placing it in a 
public magazine, it is because he stores it there, in his own opin- 
ion, more advantageously than elsewhere. We are not sure that 
this may not be classed among inspection laws. The removal or 
destruction of infectious or unsound articles is, undoubtedly, an 
exercise of that power, and forms an express exception to the pro- 
hibition we are considering. Indeed, the laws of the United 
States expressly sanction the health laws of a State. 

The principle, then, for which the plaintiffs in error contend, 
that the importer acquires a right, not only to bring the articles 
into the country, but to mix them with the common mass of prop- 
erty, does not interfere with the necessary power of taxation which 
is acknowledge to reside in the States, to that dangerous extent 
which the counsel for the defendants in error seem to apprehend. 
It carries the prohibition in the constitution no further than to 
prevent the States from doing that which it was the great object 
of the constitution to prevent. 

But if it should be proved, that a duty on the article itself 
would be repugnant to the constitution, it is still argued that this 
is not a tax upon the article, but on the person. The State, it is 
said, may tax occupations, and this is nothing more. 

It is impossible to conceal from ourselves that this is varying 
the form without varying the substance. It is treating a prohibi- 
tion which is general, as if it were confined to a particular mode 
of doing the forbidden thing. All must perceive that a tax on 
the sale of an article, imported only for sale, is a tax on the article 
itself. It is true the State may tax occupations generally, but this 
tax must be paid by those who employ the individual, or is a tax 
on his business. The lawyer, the physician, or the mechanic, 
must either charge more on the article in which he deals, or the 
thing itself is taxed through his person. This the State has a 
right to do, because no constitutional prohibition extends to it. 
So, a tax on the occupation of an importer is, in like manner, a 



300 CASES ON CONSTITUTIONAL LAW. 

tax on importation. It must add to the price of the article, 
and be paid by the consumer, or by the importer himself, in like 
manner as a direct duty on the article itself would be made. 
This the State has not a right to do, because it is prohibited by 
the constitution. 

In support of the argument that the prohibition ceases the in- 
stant the goods are brought into the country, a comparison has 
been drawn between the opposite words export and import. As, 
to export, it is said, means only to carry goods out of the country; 
so, to import, means only to bring them into it. But, suppose we 
extend this comparison to the two prohibitions. The States are 
forbidden to lay a duty on exports, and the United States are for- 
bidden to lay a tax or duty on articles exported from any State. 
There is some diversity in language, but none is perceivable in the 
act which is prohibited. The United States have the same right 
to tax occupations which is possessed by the States. Now, sup- 
pose the United States should require every exporter to take out a 
license, for which he should pay su^h tax as congress might think 
proper to impose; would government be permitted to shield itself 
from the just censure to which this attempt to evade the prohibi- 
tions of the constitution would expose it, by saying that this was 
a tax on the person, not on the article, and that the legislature 
had a right to tax occupations? Or, suppose revenue cutters were 
to be stationed off the coast for the purpose of levying a duty on all 
merchandise found in vessels which were leaving the United States 
for foreign countries; would it be received as an excuse for this 
outrage, were the government to say that exportation meant no 
more than carrying goods out of the country, and as the pro- 
hibition to lay a tax on imports, or things imported, ceased the 
instant they were brought into the country, so the prohibition to 
tax articles exported ceased when they were carried out of the 
country? 

We think, then, that the act under which the plaintiffs in error 
were indicted, is repugnant to that article of the constitution 
which declares that "no State shall lay any impost or duties on 
imports or exports." 

2. Is it also repugnant to that clause in the constitution which 
empowers "congress to regulate commerce with foreign nations, 
and among the several States, and with the Indian tribes"? 

The oppressed and degraded state of commerce previous to the 
adoption of the constitution can scarcely be forgotten. It was 
regulated by foreign nations with a single view to their own inter- 
ests; and our disunited efforts to counteract their restrictions 



BROWN V. STATE OF MARYLAND. 20l 

were rendered impotent by want of combination. Congress, in- 
deed, possessed the power of making treaties; but the inability of 
the federal government to enforce them had become so apparent 
as to render that power in a great degTee useless. Those who felt 
the injury arising from this state of things, and those who were 
capable of estimating the influence of commerce on the prosperity 
of nations, perceived the necessity of giving the control over this 
important subject to a single government. It may be doubted 
whether any of the evils proceeding from the feebleness of the 
federal government, contributed more to that great revolution 
which introduced the present system, than the deep and general 
conviction that commerce ought to be regulated by congress. It 
is not, therefore, matter of surprise that the grant should be as 
extensive as the mischief, and should comprehend all foreign com- 
merce, and all commerce among the States. To construe the 
power so as to impair its efhcacy, would tend to defeat an object, 
in the attainment of which the American public took, and justly 
took, that strong interest which arose from a full conviction of 
its necessity. 

What, then, is the just extent of a power to regulate commerce 
with foreign nations, and among the several States? 

This question was considered in the case of Gibbons v. Ogden, 
9 Wheat. Eep., 1, in which it was declared to be complete in itself, 
and to acknowledge no limitations other than are prescribed by 
the constitution. The power is co-extensive with the subject on 
which it acts, and cannot be stopped at the external boundary of 
a State, but must enter its interior. 

We deem it unnecessary now to reason in support of these 
propositions. Their truth is proved by facts continually before 
our eyes, and was, we think, demonstrated, if they could require 
demonstration, in the case alread}^ mentioned. 

If this power reaches the interior of a State, and may be there 
exercised, it must be capable of authorizing the sale of those 
articles which it introduces. Commerce is intercourse: one of 
its most ordinary ingredients is trai!ic. It is inconceivable, that 
the power to authorize this traffic, when given in the most com- 
prehensive terms, wdth the intent that its efficacy should be com- 
plete, should cease at the point when its continuance is indis- 
pensable to its value. To what purpose should the power to 
allow importation be given, unaccompanied with the power to 
authorize a sale of the thing imported? Sale is the object of im- 
portation, and is an essential ingredient of that intercourse, of 
which importation constitutes a part. It is as essential an ingre- 



203 CASES ON CONSTITUTIONAL LAW. 

dient, as indispensable to the existence of the entire thing, then, 
as importation itself. It must be considered as a component part 
of the power to regulate commerce. Congress has a right, not 
only to authorize importation, but to authorize the importer to 
sell. 

If this be admitted, and we think it cannot be denied, what can 
be the meaning of an act of congress which authorizes importa- 
tion, and offers the privilege for sale at a fixed price to every per- 
son who chooses to become a purchaser? How is it to be construed, 
if an intent to deal honestly and fairly, an intent as wise as it is 
moral, is to enter into the construction? What can be the use of 
the contract, what does the importer purchase, if he does not 
purchase the privilege to sell? 

What would be the language of a foreign government, which 
should be informed that its merchants, after importing according 
to law, were forbidden to sell the merchandise imported? What 
answer would the United States give to the complaints and just 
reproaches to which such an extraordinary circumstance would 
expose them? No apology could be received, or even offered. 
Such a statB of things would break up commerce. It will not 
meet this argument, to say, that this state of things will never be 
produced; that the good sense of the States is a sufficient security 
against it. The constitution has not confided this subject to that 
good sense. It is placed elsewhere. The question is, where does 
the power reside? not, how far will it be probably abused? The 
power claimed by the State is, in its nature, in conflict with that 
given to congress; and the greater or less extent in which it may 
be exercised does not enter into the inquiry concerning its exist- 
ence. 

We think, then, that if the power to authorize a sale exists in 
congress, the conclusion that the right to sell is connected with 
the law permitting importation, as an inseparable incident, is 
inevitable. 

If the principles we have stated be correct, the result to which 
they conduct us cannot be mistaken. Any penalty inflicted on 
the importer for selling the article, in his character of importer, 
must be in opposition to the act of congress which authorizes im- 
portaition. Any charge on the introduction and incorporation of 
the articles into and with the mass of property in the country, 
must be hostile to the power of congress to regulate commerce, 
since an essential part of that regulation, and principal object of 
it, is, to prescribe the regular means for accomplishing that intro- 
duction and incorporation. 



BROWN V. STATE OF MARYLAND. 303 

The distinction between a tax on the tiling imported and on the 
person of the importer, can have no influence on this part of the 
subject. It is too obvious for controversy that they interfere 
equally with the power to regulate commerce. 

It has been contended that this construction of the power to 
regulate commerce, as was contended in construing the prohibi- 
tion to lay duties on imports, would abridge the acknowledged 
power of a State to tax its own citizens, or their property within 
its territory. 

We admit this power to be sacred; but cannot admit that it 
may be used so as to obstruct the free course of a power given to 
congress. We cannot admit that it may be used so as to obstruct 
or defeat the power to regulate commerce. It has been observed 
that the powers remaining with the States may be so exercised 
as to come in coniiict with those vested in congress. When this 
happens, that which is not supreme must yield to that which is 
supreme. This great and universal truth is inseparable from the 
nature of things, and the constitution has applied it to the often 
interfering powers of the general and state governments, as a vital 
principle of perpetual operation. It results, necessarily, from this 
principle, that the taxing power of the States must have some 
limits. It cannot reach and restrain the action of the national 
government within its proper sphere. It cannot reach the admin- 
istration of justice in the courts of the Union, or the collection of 
the taxes of the United States, or restrain the operation of any 
law which congress may constitutionally pass. It cannot interfere 
with any regulation of commerce. If the States may tax all per- 
sons and property found on their territory, what shall restrain 
them from taxing goods in their transit through the State from 
one part to another, for the purpose of re-exportation? The laws 
of trade authorize this operation, and general convenience re- 
quires it. Or what should restrain a State from taxing any article 
passing through it, from one State to another, for the purpose of 
traffic? or from taxing the transportation of articles passing from 
the State itself to another State for commercial purposes? These 
cases are all wdthin the sovereign power of taxation, but would ob- 
viously derange the measures of congress to regulate commerce, 
and affect materially the purpose for which that power was given. 
We deem it unnecessary to press this argument further, or to give 
additional illustrations of it, because the subject was taken up 
and considered with great attention, in McCulloch v. The State of 
Maryland, 4 W., 316, the decision in which case is, we think, en- 
tirely applicable to this. 



304 CASES ON CONSTITUTIONAL LAW. 

It may be proper to add that we suppose the principles laid 
down in this case to apply equally to importations from a sister 
State. We do not mean to give any opinion on a tax discriminat- 
ing between foreign and domestic articles. 

We think there is error in the judgment of the court of appeals 
of the State of Maryland, in aitirming the judgment of the Balti- 
more city court, because the act of the legislature of Maryland, 
imposing the penalty for which the said judgment is rendered, is 
repugnant to the constitution of the United States, and, conse- 
quently, void. The judgment is to be reversed, and the cause 
remanded to that court, with instructions to enter judgment in 
favor of the appellants. 

[Me. Justice Thompson gave a dissenting opinion.] 



LICENSE CASES. 

THUELOW V. THE COMMOXWEALTH OF MASSACHU- 
SETTS. 
FLETCHER v. THE STilTE OF EHODE ISLAND. 
PEIRCE ET AL. v. THE STATE OF NEW HAMPSHIEE. 

5 Howard, 504. Decided 1846. 

These three cases came wp on writs of error under the 25th sec- 
tion of the judiciary act of 1789,^ and were argued together. . . . 

It is not deemed necessary to set out the statutes on which the 
indictments were found. Their substance and effect are clearly 
stated by the chief justice, as well as by the other judges, in their 
opinions, and there was no controversy concerning their construc- 
tion, or meaning and effect. 

No opinion of the court was pronounced. Each justice gave 
Ms own reasons for affirming the decision of the state courts. 

Taxey, C. J. In the cases of Thurlow v. The State of Massa- 
chusetts, of Fletcher v. The State of Ehode Island, and of Peirce 
et al. V. The State of New Hampshire, the judgments of the re- 
spective state courts are severally affirmed. 

1 1 stats, at. Large, 85. 



LICENSE CASES. }iOo 

The justices of this court do not, however, altogether agree in 
the principles upon which these cases are decided, and I there- 
fore proceed to state the grounds upon which I concur in affirm- 
ing the judgments. The first two of these cases depend upon pre- 
cisely the same principles; and, although the case against the 
State of New Hampshire differs in some respects from the others, 
yet there are important principles common to all of them, and 
on that account it is more convenient to consider them together. 
Each of the cases has arisen upon state laws, passed for the pur- 
pose of discouraging the use of ardent spirits within their re- 
spective territories, by prohibiting their sale in small quantities, 
and without licenses previously obtained from the stafe authori- 
ties. And the validity of each of them has been drawn in ques- 
tion, upon the ground that it is repugnant to that clause of the 
constitution of the United States which confers upon congress the 
power to regulate commerce with foreign nations, and among the 
several States. . . . 

The constitution of the United States declares that that consti- 
tution, and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme 
law of the land. It follows that a law of congress, regulating com- 
merce with foreign nations, or among the several States, is the 
supreme law; and if the law of a State is in conflict with it, the 
law of congress must prevail, and the state law cease to operate 
so far as it is repugnant to the law of the United States. 

It is equally clear that the power of congress over this subject 
does not extend further than the regulation of commerce with 
foreign nations and among the several States; and that beyond 
these limits, the States have never surrendered their power over 
trade and commerce, and may still exercise it, free from any con- 
trolling power on the part of the general government. Ever}' 
State, therefore, may regulate its own internal traffic, according 
to its own judgment, and upon its own views of the interest and 
well-being of its citizens. 

I am not aware that these principles have ever been ques- 
tioned. The difficulty has always arisen on their application; and 
that difficulty is now presented in the Ehode Island and Massa- 
chusetts cases, where the question is, how far a State may regulate 
or prohibit the sale of ardent spirits, the importation of which 
from foreign countries has been authorized by congress. Is such 
a law a regulation of foreign commerce, or of the internal traffic 
of the State? 



206 CASES ON CONSTITUTIONAL LAW. 

It is unquestionably no easy task to mark, by a certain and 
clefinite line, the division between foreign and domestic commerce, 
and to fix the precise point, in relation to every imported article, 
where the paramount power of congress terminates, and that of 
the State begins. The constitution itself does not attempt to 
define these limits. They cannot be determined by the laws of 
congress or the States, as neither can, by its own legislation, en- 
large, its own powers, or restrict those of the other. And as the 
constitution itself does not draw the line, the question is neces- 
sarily one for judicial decision, and depending altogether upon 
the words of the constitution. 

This question came directly before the court, for the first time, 
in the case of Brown v. The State of Maryland, 13 Wheat., 419. 
And the court there held that an article authorized by a law of 
congress to be imported, continued to be a part of the foreign com- 
merce of the country while it remained in the hands of the im- 
porter for sale, in the original bale, package, or vessel in which 
it was imported; that the authority given to import necessarily 
carried with it the right to sell the imported article in the form 
and shape in which it was imported; and that no State, either 
by direct assessment, or by requiring a license from the importer 
before he was permitted to sell, could impose any burden upon him 
or the property imported beyond what the laAV of congress had 
itself imposed; but that, when the original package was broken 
up, for use or for retail by the importer, and also when the com- 
modity had passed from his hands into the hands of a purchaser, 
it ceased to be an import, or a part of foreign commerce, and be- 
came subject to -the laws of the State, and might be tased for 
state purposes, and the sale regulated by the State, like any other 
property. This I understand to be substantially the decision in 
the case of Brown v. The State of Maryland, drawing the line 
between foreign commerce, which is subject to the regulation of 
congress, and internal or domestic commerce, which belongs to 
the States, and over which congress can exercise no control. 

I argued the case in behalf of the State, and endeavored to 
maintain that the law of Maryland, which required the importer 
as well as other dealers to take out a license before he could sell, 
and for which he was to pay a certain sum to the State, was valid 
and constitutional; and certainly I at that time persuaded myself 
that I was right, and thought the decision of the court restricted 
the powers of the State more than a sound construction of the 
constitution of the United States would warrant. But further and 
more mature reflection has convinced me that the rule laid down 



LICENSE CASES. 207 

by the supreme court is a just and safe one, and perhaps the best 
that could have been adopted for preserving the right of the 
United States on the one hand, and of the States on the other, 
and preventing collision between them. The question, I have 
already said, was a very difficult one for the judicial mind. In 
the nature of things, the line of division is in some degree vague 
and indefinite, and I do not see how it could be drawn more 
accurately and correctly, or more in harmony with the obvious 
intention and object of this provision in the constitution. Indeed, 
goods imported, while they remain in the hands of the importer, 
in the form and shape in which they were brought into the coun- 
try, can in no just sense be regarded as a part of that mass of prop- 
erty in the State usually taxed for the support of the state govern- 
ment. The immense amount of foreign products used and con- 
sumed in this country are imported, landed, and offered for sale 
in a few commercial cities, and a very small portion of them are 
intended or expected to be used in the State in which they are 
imported. A great (perhaps the greater) part imported, in some 
of the cities, is not owned or brought in by citizens of the State, 
but by citizens of other States, or foreigners. And while they 
are in the hands of the importer for sale, in the form and shape 
in which they were introduced, and in which they are intended to 
be sold, they may be regarded as merely in transitu, and on their 
way to the distant cities, villages, and country for which they are 
destined, and where they are expected to be used and consumed, 
and for the supply of which they were in truth imported. And a 
tax upon them while in this condition, for state purposes, whether 
by direct assessment or, indirectly, by requiring a license to sell, 
would be hardly more justifiable in principle than a transit duty 
upon the merchandise when passing through a State. A tax in any 
shape upon imports is a tax on the consumer, by enhancing the 
price of the commodity. And if a State is permitted to levy it in 
any form, it will put it in the power of a maritime importing 
State to raise a revenue for the support of its own government 
from citizens of other States, as certainly and effectually as if the 
tax was laid openly and without disguise as a duty on imports. 
Such a power in a State would defeat one of the principal ob- 
jects of forming and adopting the constitution. It cannot be done 
directly, in the shape of a duty on imports, for that is expressly 
prohibited. And as it cannot be done directly, it could hardly 
be a just and sound construction of the constitution which would 
enable a State to accomplish precisely the same thing under an- 
other name, and in a different form. 



208 CASES ON CONSTITUTIONAL LAW. 

Undoubtedly a State ma}^ impose a tax upon its citizens in 
proportion to the amount tliey are respectively worth; and the 
importing merchant is liable to this assessment like any other 
citizen, and is chargeable according to the amount of his prop- 
erty, whether it consist of money engaged in trade, or of imported 
goods which he proposes to sell, or any other property of which 
he is the owner. But a tax of this description stands upon a 
very different footing from a tax on the thing imported, while it 
remains a pa.rt of foreign commerce, and is not introduced into 
the general maiss of property in the State. Nor, indeed, can it 
€ven influence materially the price of the commodity to the con- 
sumer, since foreigners, as well as citizens of other States, who 
are not chargeable with the tax, may import goods into the same 
place and offer 'them for sale in the same market, and with whom 
the resident merchant necessarily enters into competition. 

Adopting, therefore, the rule as laid down in Brown v. The 
Sitate of Maryland, 12 W., 419, I proceed to apply it to the cases 
of Massachusetts and Ehode Island. The laws of congress regu- 
lating foreign commerce authorize the importation of spirits, dis- 
tilled liquors, and brandy, in casks or vessels not containing less 
than a certain quantitj^, specified in the laws upon this subject. 
jSTow, if the state laws in question came in collision with those 
acts of Congress, and prevented or obstructed the importation or 
sale of these articles by the importer in the original cask or vessel 
in which they were imported, it would be the duty of this court 
to declare them void. 

It has, indeed, been suggested, that, if a State deems the traffic 
in ardent spirits to be injurious to its citizens, and calculated to 
introduce immoralit}^ vice, and j)auperism into the State, it may 
constitutionally refuse to permit its importation, notwithstand- 
ing the laws of congress; and that a State may do this upon the 
same principles that it may resist and prevent the introduction 
of disease, pestilence, or pauperism from abroad. But it must be 
remembered that disease, pestilence, and pauperism are not sub- 
jects of commerce, although sometimes among its attendant evils. 
They are not things to be regulated and trafficked in, but to be 
prevented, as far as human foresight or human means can guard 
against them. But spirits and distilled liquors are universally 
admitted to be subjects of ownership and property, and are there- 
fore subjects of exchange, barter, and traffic, like any other com- 
modity in which a right of property exists. And congress, under 
its general power to regulate commerce with foreign nations, may 
prescribe what article of merchandise shall be admitted, and what 



LICENSE CASES. ^09 

excluded; and may therefore admit, or not, as it sliall seem best, 
the importation of ardent spirits. And inasmuch as the laws of 
congress authorize their importation, no State has a right to pro- 
hibit their introduction. 

But I do not understand the law of Massachusetts or Ehode 
Island as interfering with the trade in ardent spirits while the 
article remains a part of foreign commerce, and is in the hands of 
the importer for sale, in the cask or vessel in which the laws of 
congress authorize it to be imported. These state laws act alto- 
gether upon the retail or domestic traffic within their respective 
borders. They act upon the article after it has passed the line of 
foreign commerce, and become a part of the general mass of 
property in the State. These laws may, indeed, discourage im- 
ports, and diminish the price which ardent spirits would otherwise 
bring. But although a State is bound to receive and to permit 
the sale by the importer of any article of merchandise which con- 
gress authorizes to be imported, it is not bound to furnish a 
market for it, nor to abstain from the passage of any law which it 
may deem necessary or advisable to guard the health or morals 
of its citizens, although such law may discourage importation, or 
diminish the profits of the importer, or lessen the revenue of the 
general government. And if any State deems the retail and in- 
ternal traffic in ardent spirits injurious to its citizens, and calcu- 
lated to produce idleness, vice, or debauchery, I see nothing in 
the constitution of the United States to prevent it from regulat- 
ing and restraining the traffic, or from prohibiting it altogether, 
if it thinks proper. Of the wisdom of this policy, it is not my 
province or my purpose to speak. Upon that subject, each State 
must decide for itself. I speak only of the restrictions which the 
constitution and laws of the United States have imposed upon the 
States. And as the laws of Massachusetts and Ehode Island are 
not repugnant to the constitution of the United States, and do 
not come in conflict with any law of congress passed in pursuance 
of its authority to regulate commerce with foreign nations and 
among the several States, there is no ground ujDon which this 
court can declare them to be void. 

I now come to the New Hampshire case, in which a different 
principle is involved, — the question, however, arising under the 
same clause in the constitution, and depending on its construction. 

The law of New Hampshire prohibits the sale of distilled spirits, 

in any quantity, without a license from the selectmen of the town 

in which the party resides. The plaintiffs in error, who were 

merchants in Dover, in New Hampshire, purchased a barrel of 

14 



210 CASES ON CONSTITUTIONAL LAV/. 

gin in Boston^ brought it to Dover, and sold it in the cask in which 
it was imported, without a license from the selectmen of the town. 
For this sale they were indicted^ convicted, and fined, under the 
law above mentioned. 

The power to regulate commerce among the several States is 
gTanted to congress in the same clause, and by the same words, as 
the power to regulate commerce with foreign nations, and is co- 
extensive with it. And, according to the doctrine in Brown v. 
Maryland, the article in question, at the time of the sale, was sub- 
ject to the legislation of congress. 

The present case, however, differs from Brown v. The State of 
Maryland in this, — ^that the former was one arising out of com- 
merce with foreign nations, which congress had regulated by law; 
whereas the present is a case of commerce between two States, in 
relation to which congress has not exercised its power. Some acts 
of congTess have indeed been referred to in relation to the coasting 
trade. But they are evidently intended merely to prevent smug- 
gling, and do not regulate imports or exports from one State to 
another. This case differs also from the cases of Massachusetts 
and Ehode Island; because, in these two cases, the laws of the 
States operated upon the articles after they had passed beyond 
the limits of foreign commerce, and consequently were beyond the 
control and power of congress. But the law of ~New Hampshire 
acts directly upon an import from one State to another, while in 
the hands of the importer for sale, and is therefore a regulation of 
commerce, acting upon the article while it is within the admitted 
jurisdiction of the general government, and subject to its control 
and regulation. 

The question therefore brought up for decision is, whether a 
State is prohibited by the constitution of the United States from 
making any regulations of foreign commerce, or of commerce with 
another State, although such regulation is confined to its own ter- 
ritory and made for its own convenience or interest, and does not 
come in conflict with any law of congress. In other words, wheth- 
er the grant of power to congress is of itself a prohibition to the 
States, and renders all state laws upon the subject null and void. 
This is the question upon which the case turns; and I do not see 
how it can be decided upon any other ground, provided we adopt 
the line of division between foreign and domestic commerce as 
marked out by the court in Brown v. The State of Maryland. I 
proceed, therefore, to state my opinion upon it. 

It is well known that upon this subject a difference of opinion 
has existed, and still exists, among the members of this court. 



1 



LICENSE CASES. 211 

But with every respect for the opinion of my brethren with whom 
I do not agree, it appears to me to be very clear, that the mere 
grant of power to the general government cannot, upon any just 
principles of construction, be construed to be an absolute prohibi- 
tion to the exercise of any power over the same subject by the 
States. The controlling and supreme power over commerce with 
foreign nations and the several States is undoubtedly conferred 
upon congress. Yet, in my judgment, the State may, neverthe- 
less, for the safety or convenience of trade, or for the protection 
of the health of its citizens, make regulations of commerce for its 
own ports and harbors, and for its own territory; and such regula- 
tions are valid unless they come in conflict with a law of congress. 
Such evidently, I think, was the construction which the consti- 
tution universally received at the time of its adoption, as appears 
from the legislation of congress and of the several States; and a 
careful examination of the decisions of this court will show, that, 
so far from sanctioning the opposite doctrine, they recognize and 
maintain the power of the States. 

The language in which the grant of power to the general govern- 
ment is made, certainly furnishes no warrant for a different con- 
struction, and there is no prohibition to the States. Neither can 
it be inferred by comparing the provisions upon this subject with 
those that relate to other powers granted by the constitution to 
the general government. On the contrary, in many instances, 
after the grant is made, the constitution ^proceeds to prohibit the 
exercise of the same power by the States in express terms; in 
some cases absolutely, in others without the consent of congress. 
And if it was intended to forbid the States from making any reg- 
ulations of commerce, it is difficult to account for the omission to 
prohibit it, when that prohibition has been so carefully and dis- 
tinctly inserted in relation to other powers, where the action of 
the State over the same subject was intended to be entirely ex- 
cluded. But if, as I think, the framers of the constitution (know- 
ing that a multitude of minor regulations must be necessary, 
which congress amid its great concerns could never find time to 
consider and provide) intended merely to make the power of the 
federal government supreme upon this subject over that of the 
States, then the omission of any prohibition is accounted for, and 
is consistent with the whole instrument. The supremacy of the 
laws of congress, in cases of collision with state laws, is secured 
in the article which declares that the laws of congress, passed in 
pursuance of the powers granted, shall be the supreme law; and 
it is only where both governments may legislate on the same sub- 



213 CASES ON CONSTITUTIONAL LAV/. 

Ject that this article may operate. For if the mere grant of power 
to the general government was in itself a prohibition to the States, 
there would seem to be no necessity for providing for the suprem- 
acy of the laws of congress, as all state laws upon the subject 
would be ipso facto void, and there could, therefore, be no such 
thing as conflicting laws, nor any question about the supremacy of 
conflicting legislation. It is only where both may legislate on the 
subject that the question can arise. 

I have said that the legislation of congress and the States has 
conformed to this construction from the foundation of the gov- 
ernment. This is sufficiently exemplified in the laws in relation 
to pilots and pilotage, and the health and quarantine laws. 

In relation to the first, they are admitted on all hands to be- 
long to foreign commerce, and to be subject to the regulations of 
congress, under the grant of power of which we are speaking. 
Yet they have been continually regulated by the maritime States, 
as fully and entirely since the adoption of the constitution as 
they were before; and there is but one law of congress^ making 
any specific regulation upon the subject, and that passed as late 
as 1837, and intended, as it is understood, to alter only a single 
provision of the New York law, leaving the residue of its 
provisions entirely untouched. It is true, that the act of 
1789^ provides that pilots shall continue to be regulated by 
the laws of the respective States then in force, or which 
may thereafter be passed, until congress shall make provision on 
the subject. And undoubtedly congress had the power, by assent- 
ing to the state laws then in force, to make them its own, and 
thus make the previous regulations of the States the regulations 
of the general government. But it is equally clear, that, as to all 
future laws by the States, if the constitution deprived them of the 
power of making any regulations on the subject, an act of con- 
gress could not restore it. For it will hardly be contended that 
an act of congress can alter the constitution, and confer upon a 
State a power which the constitvition declares it shall not possess. 
And if the grant of power to the United States to make regula- 
tions of commerce is a prohibition to the States to make any regu- 
lation upon the subject, congress could no more restore to the 
States the power of which it was thus deprived, than it could 
authorize them to coin money, or make paper money a tender 
in the payment of debts, or to do any other act forbidden to them 
by the constitution. Every pilot law in the commercial States 

1 5 Stats, at Large, 153. 2 1 ibid., 54. 



LICENSE CASES. 313 

has, it is believed, been either modified or passed since the act of 
1789 adopted those then in force; and the provisions since made 
are all void, if the restriction on the power of the States now con- 
tended for should be maintained; and the regulations made, the 
duties imposed, the securities required, and penalties inflicted by 
these various state laws are mere nullities, and could not be en- 
forced in a court of justice. It is hardly necessary to speak of the 
mischiefs which such a construction would produce to those who 
are engaged in shipping, navigation, and commerce. Up to this 
time their validity has never been questioned. On the contrary, 
they have been repeatedly recognized and upheld by the decisions 
of this court; and it will be difficult to show how this can be 
done, except upon the construction of the constitution which I 
am now maintaining. So, also, in regard to health and quaran- 
tine laws. They have been continually passed by the States ever 
since the adoption of the constitution, and the power to pass them 
recognized by acts of congress, and the revenue officers of the 
general government directed to assist in their execution. Yet all 
of these health and quarantine laws are necessarily, in some de- 
gree, regulations of foreign commerce in the ports and harbors 
of the State. They subject the ship, and cargo, and crew to the 
inspection of a health officer appointed by the State; they prevent 
the crew and cargo from landing until the inspection is made, 
and destroy the cargo if deemed dangerous to health. And dur- 
ing all this time the vessel is detained at the place selected for the 
quarantine ground by the state authority. The expenses of these 
precautionary measures are also usually, and I believe universally, 
charged upon the master, the owner, or the ship, and the amount 
regulated by the state law, and not by congress. Now, so far as 
these laws interfere with shipping, navigation, or foreign com- 
merce, or impose burdens upon either of them, they are unques- 
tionably regulations of commerce. Yet, as I have already said, 
the power has been continually exercised by the States, has been 
continually recognized by congress ever since the adoption of the 
constitution, and constantly affirmed and supported by this court 
whenever the subject came before it. 

The decisions of this court will, also, in my opinion, when care- 
fully examined, be found to sanction the construction I am main- 
taining. It is not my purpose to refer to all of the cases in which 
this question has been spoken of, but only to the principal and 
leading ones; and, — 

First, to Gibbons v. Ogden, 9 Wheat., 1, because this is the 
case usually referred to and relied on to prove the exclusive power 



214 CASES ON CONSTITUTIONAL LAW. 

of congress and the prohibition to the States. It is true that one 
or two passages in that opinion, taken by themselves, and de- 
tached from the context, would seem to countenance this doctrine. 
And, indeed, it has always appeared to me that this controversy 
has mainly arisen out of that case, and that this doctrine of the 
exclusive power of congress, in the sense in which it is now con- 
tended for, is comparatively a modem one, and was never seriously 
put forward in any case until after the decision of Gibbons v. 
Ogden, although it has been abundantly discussed since. Still, 
it seems to me to be clear, upon a careful examination of that case, 
that the expressions referred to do not warrant the inference 
drawn from them, and were not used in the sense imputed to 
them; and that the opinion in that case, when taken altogether 
and with reference to the subject-matter before the court, estab- 
lishes the doctrine that a State may, in the execution of its powers 
of internal police, make regulations of foreign commerce; and that 
such regulations are valid, unless they come into collision with a 
law of congress. Upon examining that opinion, it will be seen 
that the court, when it uses the expressions which are supposed 
to countenance the doctrine of exclusive power in congress, is com- 
menting upon the arg-ument of counsel in favor of equal powers 
on this subject in the States and the general government, where 
neither party is bound to yield to the other; and is drawing the 
distinction between cases of concurrent powers and those in which 
the supreme or paramount power was granted to congress. It 
therefore very justly speaks of the States as exercising their own 
powers in laying taxes for state purposes, although the same thing 
is taxed by congress; and as exercising the powers granted to 
congress when they make regulations of commerce. In the first 
case, the state power is concurrent with that of the general gov- 
ernment, — is equal to it, and is not bound to yield. In the second, 
it is subordinate and subject to the superior and controlling power 
conferred upon congress. 

Moreover the court distinctly admits, on pages 205, 206, that 
a State may, in the execution of its police and health laws, make 
regulations of commerce, but which congress may control. It is 
very clear, that, so far as these regulations are merely internal, 
and do not operate on foreign commerce, or commerce among the 
States, they are altogether independent of the power of the gen- 
eral government and cannot be controlled by it. The power of 
control, therefore, which the court speaks of, presupposes that 
they are regulations of foreign commerce, or commerce among the 
States. And if a State, with a view to its police or health, may 



LICENSE CASES. 315 

make valid regulations of commerce which yet fall within the 
controlling power of the general government, it follows that the 
State is not absolutely prohibited from making regulations of for- 
eign commerce within its own territorial limits, provided they do 
not come in conflict with the laws of congress. 

It has been said, indeed, that quarantine and health laws are 
passed by the States, not by virtue of a power to regulate com- 
merce, but by virtue of their police powers,, and in order to guard 
the lives and health of their citizens. This, however, cannot be 
said of the pilot laws, which are yet admitted to be equally valid. 
But what are the police powers of a State? They are nothing 
more or less than the powers of government inherent in every 
sovereignty to the extent of its dominions. And whether a State 
passes a quarantine law, or a law to punish offenses, or to establish 
courts of justice, or requiring certain instruments to be recorded, 
or to regulate commerce within its own limits, in every case it 
exercises the same power; that is to say, the power of sover- 
eignty, the power to govern men and things within the limits of 
its dominion. It is by virtue of this power that it legislates; and 
its authority to make regulations of commerce is as absolute as 
its power to pass health laws, except in so far as it has been 
restricted by the constitution of the United States. And when 
the validity of a state law making regulations of commerce is 
drawn into question in a judicial tribunal, the authority to pass 
it cannot be made to depend upon the motives that may be sup- 
posed to have influenced the legislature, nor can the court inquire 
whether it was intended to guard the citizens of the State from 
pestilence and disease, or to make regulations of commerce for the 
interest and convenience of trade. 

Upon this question, the object and motive of the State are of 
no importance, and cannot influence the decision. It is a ques- 
tion of power. Are the States absolutely prohibited by the con- 
stitution from making any regulations of foreign commerce? If 
they are, then such regulations are null and void, whatever may 
have been the motive of the State, or whatever the real object of 
the law; and it requires no law of congress to control or annul 
them. Yet the case of Gibbons v. Ogden, 9 Wheat., 1, unques- 
tionably affirms that such regulations may be made by a State, 
subject to the controlling power of congress. And if this may be 
done, it necessarily follows that the grant of power to the federal 
government is not an absolute and entire prohibition to the States, 
but merely confers upon congress the superior and controlling 
power. And to expound the particular passages hereinbefore 



216 CASES ON CONSTITUTIONAL LAW. 

mentioned in th.e manner insisted upon by those who contend for 
the prohibition, would be to make different parts of that 
opinion inconsistent with each other, — an error which I am Cjuite 
sure no one will ever impute to the very eminent Jurist by whom 
the opinion was delivered. 

And that the meaning of the court in the ease of Gibbons v. 
Ogden was such as I have insisted on, is, I think, conclusively 
proved by the case of Willson et al. v. The Blackbird Creek Marsh 
Company, 2 Pet., 251, 252. In that case, a dam authorized by 
a state law had been erected across a navigable creek, so as to 
obstruct the commerce above it. And the validity of the state 
law was objected to, on the ground that it was repugnant to the 
constitution of the United States, being a regulation of commerce. 
But the court says: "The repugnancy of the law of Delaware to 
the constitution is placed entirely on its repugnancy to the power 
to regulate commerce with foreign nations, and among the several 
States; a power which has not been so exercised as to affect the 
question," and then proceeds to decide that the law of Delaware 
could not '^'be considered as repugnant to the power to regulate 
commerce in its dormant state, or as being in conflict with any 
law passed on the subject." 

The passages I have cjuoted show that the validity of the state 
law was maintained because it was not in conflict with a law of 
congress, although it was confessedly within the limits of the 
power granted. And it is worthy of remark, that the counsel for 
the plaintiff in error in that case relied upon Gibbons v. Ogden, 
as conclusive authority to show the unconstitutionality of the 
state law, no doubt placing upon the passages I have mentioned 
the construction given to them by those who insist upon the 
exclusiveness of the power. This case, therefore, was brought 
fully to the attention of the court. And the decision in the last 
case, and the grounds on which it was placed, in my judgment, 
show most clearly what was intended in Gibbons v. Ogden; and 
that in that case, as well as in the case of TTillson et al. v. The 
Blackbird Creek Marsh Company, the court held that a state law 
was not invalid merely because it made regulations of commerce, 
but that its invalidity depended upon its repugnancy to a law of 
congress passed in pursuance of the power granted. And it is 
worthy, also, of remark, that the opinion in both of these cases 
was delivered by Chief .Justice Marshall, and I consider his opin- 
ion in the latter one as an exjoosition of what he meant to decide 
in the former. 

In the case of the City of Xew A^ork v. Miln, 11 Pet., 130, the 



LICENSE CASES. 217 

question as to the power of the States upon this subject was very 
fully discussed at the bar. But no opinion was expressed upon 
it by the court, because the case did not necessarily involve it, 
and there was great diversity of opinion on the bench. Conse- 
quently the point was left open, and has never been decided in 
any subsequent case in this court. 

For my own part, I have always regarded the cases of Gibbons 
V. Ogden, 9 Wheat., 1, and Willson et al. v. The Blackbird Creek 
Marsh Company, 2 Pet., 245, as abundantly sufficient to sanction 
the construction of the constitution which in my judgment is 
the true one. Their correctness has never been questioned; and 
I forbear, therefore, to remark on the other cases in which this 
subject has been mentioned and discussed. 

It may be well, however, to remark, that in analogous cases, 
where, by the constitution of the United States, power over a 
particular subject is conferred on congress without any prohibition 
to the States, the same rule of construction has prevailed. Thus 
in the case of Houston v. Moore, 5 Wheat., 1, it was held that 
the grant of power to the federal government to provide for organ- 
izing, arming, and disciplining the militia, did not preclude the 
States from legislating on the same subject, provided the law of 
the State was not repugnant to the law of congress. And every 
State in the Union has continually legislated on the subject, and 
I am not aware that the validity of these laws has ever been dis- 
puted, unless they came in conflict with the law of congress. 

The same doctrine Avas held in the case of Sturges v. Crownin- 
shield, 4 Wheat., 196, under the clause in the constitution which 
gives to congress the power to establish uniform laAvs on the siib- 
ject of bankruptcies throughout the United States. 

And in the case of Chirac v. Chirac, 2 Wheat., 269, which arose 
under the grant of power to establish a uniform rule of natural- 
ization, where the court speak of the power of congress as exclu- 
sive, they are evidently merely sanctioning the argument of coun- 
sel stated in the preceding sentence, which placed the invalidity 
of the naturalization under the law of Maryland, not solely upon 
the grant of power in the constitution, but insisted that the Mary- 
land law was "virtually repealed by the constitution of the United 
States, and the act of naturalization enacted by congress." Un- 
doubtedly it was so repealed, and the opposing counsel in the case 
did not dispute it. For the law of the United States covered 
every part of the Union, and there could not, therefore, by possi- 
bility, be a state law which did not come in conflict with it. And, 
indeed, in this case, it might Avell have been doubted whether the 



218 CASES ON CONSTITUTIONAL LAW. 

grant in the constitution itself did not abrogate the power of 
the States^ inasmuch as tlie constitution also provided that the 
citizens of each State should be entitled to all the privileges and 
immunities of citizens in the several States; and it would seem 
to be hardly consistent with this provision to allow any one State, 
after the adoption of the constitution, to exercise a power which, 
if it operated at all, must operate beyond the territory of the State, 
and compel other States to acknowledge as citizens those whom it 
might not be willing to receive. 

In referring to the opinions of those who sat here before us, 
it is but justice to them, in expounding their language, to keep 
in mind the character of the case they were deciding. And this 
is more especially necessary in cases depending upon the construc- 
tion of the constitution of the United States, where, from the 
great public interests which must always be involved in such ques- 
tions, this court have usually deemed it advisable to state very 
much at large the principles and reasoning upon which their judg- 
ment was founded, and to refer to and comment on the leading 
points made by the counsel on either side in the argument. And 
I am not aware of any instance in which the court have spoken 
of the grant of power to the general government as excluding all 
State power over the subject, unless they were deciding a case 
where the power had been exercised by congress, and a state law 
came in conflict with it. In cases of this kind, the power of Con- 
gress undoubtedly excludes and displaces that of the State; be- 
cause, wherever there is collision between them, the law of con- 
gress is supreme. And it is in this sense only, m my judgment, 
that it has been spoken of as exclusive in the opinions of the 
court to which I have referred. The case last mentioned is a 
striking example; for there the language of the court, affirming 
in the broadest terms the exclusiveness of the power, evidently 
refers to the argument of counsel stated in the preceding sen- 
tence. 

I'pon the whole, therefore, the law of Xew Hampshire is, in my 
judgment, a valid one. For, although the gin sold was an import 
from another State, and congress have clearly the power to reg- 
ulate such importations, under the grant of power to regulate com- 
merce among the several States, yet, as congress has made no 
regulation on the subject, the traffic in the article may be lawfully 
regulated by the State as soon as it is landed in its territory, and 
a tax imposed upon it, or a license required, or the sale altogether 
prohibited, according to the policy which the State may suppose 
to be its interest or duty to pursue. 



THE PASSENGER CASES. 219 

The judgment, of the state courts ought, therefore, in my opin- 
ion, to be affirmed in each of the three cases before us. . . . 

[Messes. Justices McLean, Catron, Daniel, WooDsrEY, 
and Geiee also gave opinions. Me. Justice Nelson concurred 
in the opinions of the Chief Justice and of Me. Justice 
Cateon] . 



THE PASSENGER CASES. 

SMITH V. TURNER. NORRIS v. BOSTON. 

7 Howard, 283. Decided 1848. 

There were writs of error, the first to the court for the trial 
of impeachments, &c., of the State of New York, the second, to 
the supreme Judicial court of the State of Massachusetts, under 
the 25th section of the judiciary act of 1789, 1 Stats, at Large, 
85. The cases will be found succinctly but clearly stated in the 
opinions of Justice McLean ... of Justice Catron . . . 
and of Justice Grier. . . . 

Smith v. Tuener. 

McLean, J. Under the general denomination of health laws 
in New York, and by the 7th section of an act relating to the 
marine hospital, it is provided, that "the health commissioners 
shall demand and be entitled to receive, and in case of neglect 
or refusal to pay, shall sue for and recover, in his name of office, 
the following sums from the master of every vessel that shall 
arrive in the port of New York, namely: — 

"1. From the master of every vessel from a foreign port, for 
himself and each cabin passenger, $1.50; for each steerage passen- 
ger, mate, sailor, or mariner, $1. 

"2. From the master of each coasting vessel, for each person 
on board, $0.25; but no coasting vessel from the States of New 
Jersey, Connecticut, and Rhode Island shall pay for more than 
one voyage in each month, computing from the first voyage in 
each year." 

The 8th section provides that the money so received, shall be 
denominated "hospital moneys." And the 9th section gives "each 



220 CASES ON CONSTITUTIONAL LAW. 

master paying hospital moneys, a right to demand and recover 
from each person the sum paid on his account." The 10th sec- 
tion declares any master, who shall fail to make the above pay- 
ments within twenty-four hours after the arrival of his vessel in 
the port, shall forfeit the sum of $100. By the 11th section, the 
commissioners of health are required to accoimt annually to the 
comptroller of the State for all moneys received by them for the 
use of the marine hospital; "and if such money shall, in any one 
year, exceed the sum necessary to defray the expenses of their trust, 
including their own salaries, and exclusive of such expenses as 
are to be borne and paid as a part of the contingent charges of 
the city of ISTew York, they shall pay over such surplus to the 
treasurer of the Society for the Eeformation of Juvenile Delin- 
quents in the city of ISTew York, for the use of the society." 

The plaintiff in error was master of the British ship Henry Bliss, 
which vessel touched at the port of Kew York in the month of 
June, 1841, and landed 290 steerage passengers. The defendant 
in error brought an action of debt on tli* statute against the 
plaintiff, to recover $1 for each of the above passengers. A de- 
murrer was filed, on the ground that the statute of New York was 
a regulation of commerce, and in conflict with the constitution 
of the United States. The supreme court of the State overruled 
the demurrer, and the court of errors affirmed the judgment. This 
brings before this court, under the 25th section of the judiciary 
act, the constitutionality of the ISTew York statute. 

I will consider the case under two general heads:— 

1. Is the power of congress to regulate commerce an exclusive 
power? 

2. Is the statute of New York a regulation of commerce? 
[In answer to the first question citations are given from Holmes 

V. Jennison, 14 Pet., 570; Houston v. Moore, 5 Wheat., 23; Gib- 
bons V. Ogden, 9 Wlieat., 196; Brown v. Maryland, 12 Wheat., 
446; New York v. Miln, 11 Pet., 158; Sturges v. Crowninshield, 
4 Wlieat., 122; Wilson v. The Blackbird Creek Marsh Co., 2 Pet., 
250, and The Federalist, No. 32.] 

Whether I consider the nature and object of the commercial 
power, the class of powers with which it is placed, the decision 
of this court in the case of Gibbons v. Ogden, 9 Wlieat., 1, reit- 
erated in Brown v. The State of Maryland, 12 Wlieat., 419, and 
often reasserted by Mr. Justice Story, who participated in those 
decisions, I am brought to the conclusion that the power "to reg- 
ulate commerce with foreign nations, and among the several 
States," by the constitution, is exclusively vested in congress. 



* THE PASSENGER CASES. 221 

I come now to inquire, under the second general proposition, Is 
the statute of New York a regulation of foreign commerce? 

All commercial action within the limits of a State, and which 
does not extend to any other State or foreign country, is exclu- 
sively under state regulation. Congress have no more power to 
control this than a State has to regulate commerce "with foreign 
nations and among the several States." And yet Congress may 
tax the property within a State, of every description, owned by its 
citizens, on the basis provided in the constitution, the same as a 
State may tax it. But if congress should impose a tonnage duty 
on vessels which ply between ports within the same State, or 
require such vessels to take out a license, or impose a tax on per- 
sons transported in them, the act would be unconstitutional and 
void. But foreign commerce and commerce among the several 
States, the regulation of which, with certain constitutional ex- 
ceptions, is exclusively vested in congress, no State can regulate. 

In giving the commercial power to congress, the States did 
not part with that power of self-preservation which must be in- 
herent in every organized community. They may guard against 
the introduction of anything which may corrupt the morals, or en- 
danger the health or lives of their citizens. Quarantine or health 
laws have been passed by the States, and regulations of police for 
their protection and welfare. The inspection laws of a State 
apply chiefly to exports, and the State may lay duties and imposts 
on imports or exports, to pay the expense of executing those laws. 
But a State is limited to what shall be "absolutely necessary" for 
that purpose. And still further to guard against the abuse of 
this power, it is declared that "the net produce of all duties and 
imposts laid by a State on imports or exports, shall be for the 
use of the treasury of the United States; and all such laws shall 
be subject to the revision and control of congress." 

The cautious manner in which the exercise of this commercial 
power by a State is guarded, shows an extreme jealousy of it by 
the convention; and no doubt the hostile regulations of commerce 
by the States, under the confederation, had induced this jealousy. 
No one can read this provision, and the one which follows it in 
relation to tonnage duties, without being convinced that they 
cover, and were intended to cover, the entire subject of foreign 
commerce. A criticism on the term "import," by which to limit 
the obvious meaning of this paragraph, is scarcely admissible in 
construing so grave an instrument. 

Commerce is defined to be "an exchange of commodities." But 
this definition does not convey the full meaning of the term. It 



223 CASES ON CONSTITUTIONAL LAW. 

includes "navigation and interconrse." That the transportation 
of passengers is a part of commerce, is not now an open question. 
In Gibbons v. Ogden, this court say: "No clear distinction is 
perceived between the powers to regulate vessels in transporting 
men for hire, and property for hire." The provision of the consti- 
tution, that "the migration or importation of such persons as 
any of the States now existing shall think proper to admit, shall 
not be prohibited by congress prior to the year 1808," is a restric- 
tion on the general power of congress to regulate commerce. In 
reference to this clause, this court say, in the above case: "This 
section proves that the power to regulate commerce applies equally 
to the regulation of vessels employed in transporting men who 
pass from place to place voluntarily, and to those who pass invol- 
untarily." 

To encourage foreign emigration was a cherished policy of this 
country at the time the constitution was adopted. As a branch 
of commerce, the transportation of passengers has always given 
a profitable employment to our ships, and, within a few years past^ 
has required an amount of tonnage nearly equal to that of im- 
ported merchandise. 

Is this great branch of our commerce left open to state regu- 
lation on the ground that the prohibition refers to an import^ 
and a man is not an import? 

Pilot laws, enacted by the different States, have been referred 
to as commercial regulations. That these laws do regulate com- 
merce, to a certain extent, is admitted; but from what authority 
do they derive their force? Certainl}^ not from the States. By 
the fourth section of the act of the 7th of August, 1789,^ it is 
provided: "That all pilots in the bays, inlets, rivers, harbors, and 
ports of the United States, shall continue to be regulated in 
conformity with the existing laws of the States respectively, where- 
in such pilots may be, or with such laws as the States may re- 
spectively hereafter enact for the purpose, until further legisla- 
tive provision shall be made by congress." These State laws, by 
adoption, are the laws of congress, and as such, effect is given 
to them. So the laws of the States which regulate the practice 
of their courts, are adopted by congress to regulate the practice 
of the federal courts. But these laws, so far as they are adopted, 
are as much the laws of the United States, and it has often been 
so held, as if they had been specifically enacted by congress. A 
repeal of them by the State, unless future changes in the acts be 

1 1 Stats, at Large, 54. 



THE PASSENGER CASES. 223 

also adopted, does not affect their force in regard to federal action. 

In the above instances, it has been deemed proper for con- 
gress to legislate, by adopting the law of the States. And it is 
not doubted that this has been found convenient to the public 
service. Pilot laws were in force in every commercial State on the 
seaboard when the constitution was adopted; and on the intro- 
duction of a new system, it was prudent to preserve, as far as 
practicable, the modes of proceeding with which the people of 
the different States were familiar. In regard to pilots, it was 
not essential that the laws should be uniform, — their duties could 
be best regulated by an authority acquainted with the local cir- 
cumstances under which they were performed; and the fact that 
the same system is continued, shows that the public interest has 
required no change. 

'No one has yet drawn the line clearly, because, perhaps, no one 
can draw it, between the commercial power of the Union, and the 
municipal power of a State. Numerous cases have arisen, involv- 
ing these powers, which have been decided, but a rule has neces- 
sarily been observed as applicable to the circumstances of each 
case. And so must eveiy case be adjudged. A State cannot 
regulate foreign commerce, but it may do many things which more 
or less affect it. It may tax a ship or other vessel used in com- 
merce the same as other property owned by its citizens. A State 
may tax the stages in which the mail is transported; but this does 
not regulate the conveyance of the mail any more than taxing a 
ship regulates commerce. And yet, in both instances, the tax 
on the property in some degi'ee affects its use. 

An inquiry is made whether congress, under "the power to 
regulate commerce among the several States," can impose a tax 
for the use of canals, railroads, turnpike roads, and bridges, con- 
structed by a State, or its citizens? I answer, that congi-ess has 
no such power. The United States cannot use any one of these 
works without paying the customary tolls. The tolls are imposed, 
not as a tax, in the ordinary sense of that term, but as com- 
pensation for the increased facility afforded by the improvement. 

The act of New York now under consideration is called a health 
law. It imposes a tax on the master and every cabin passenger of 
a vessel from a foreign port of $1.50; and of $1 on the mate, each 
steerage passenger, sailor, or mariner. And the master is made 
responsible for the tax. he having a right to exact it of the others. 
The funds so collected are denominated hospital moneys, and are 
applied to the use of the marine hospital; the surplus to be paid 
to the treasurer of the Society for the Eeformation of Juvenile 



224 CASES ON CONSTITUTIONAL LAW. 

Delinquents in the city of ISTew York, for the use of that society. 

To call this a health law would seem to be a misapplication of 
the term. It is difiicult to perceive how a health law can be ex- 
tended to the reformation of juvenile offendt.s. On the same 
principle;, it may be made to embrace all offenders, so as to pay 
the expenses incident to an administration of the criminal law. 
And with the same propriety, it may include the expenditures of 
any branch of the civil administration of the city of New York, 
or of the State. In fact, I can see no principle on which the 
fund can be limited, if it may be used as authorized by the act. 
The amount of the tax is as much within the discretion of the 
legislature of Xew York as the objects to which it may be applied. 

It is insisted, that if the act, as regards the hospital fund, be 
within the power of the State, the application of a part of the 
fund to other objects, as provided in the act, cannot make it un- 
constitutional. This argument is unsustainable. If the State has 
power to impose a tax to defray the necessary expenses of a health 
regulation, and this power being exerted, can the tax be increased 
so as to defray the expenses of the state government? This is 
within the principle asserted. 

The case of The City of Xew York v. Miln, 11 Pet., 102, is 
relied on with great confidence, as sustaining the act in ques- 
tion. As I assented to the points ruled in that case, consistency, 
unless convinced of having erred, will compel me to support the 
law now before us, if it be the same in principle. The law in 
Miln's case required that "the master or commander of any ship 
or other vessel arriving at the port of Xew York shall, within 
twenty-four hours after his arrival, make a report, in writing, 
on oath or affirmation, to the mayor of the city of New York, of 
the name, place of birth, and last legal settlement, age, and occu- 
pation of every person brought as a passenger; and of all per- 
sons permitted to land at an}^ place during the voyage, or go on 
board of some other vessel, with the intention of isroceeding to 
said city; under the penalty on such master or commander, and 
the owner or owners, consignee or consignees, of such ship or 
vessel, severally and respectivel}^, of $75 for each individual not 
so reported." And the suit was brought against Miln, as con- 
signee of the ship Emily, for the failure of the master to make 
report of the passengers on board of his vessel. 

In their opinion, this court say: "The law operated on the 
territory of New York, over which that State possesses an acknowl- 
edged and undisputed jurisdiction for every purpose of internal 
regulation;" and "on persons whose rights and duties are rightfully 



THE PASSENGER CASES. 225 

prescribed and controlled by the laws of the respective States, 
within whose territorial limits they are found." This law was 
considered as an internal police regulation, and as not interfering 
with commerce. 

A duty was not laid upon the vessel or the passengers, but the 
report only was required from the master, as above stated. Now, 
every State has an unquestionable right to require a register of 
the names of the persons who come within it to reside temporarily 
or permanently. This was a precautionary measure to ascertain 
the rights of the individuals, and the obligations of the public, 
under any contingency which might occur. It opposed no obstnic- 
tion to congress, imposed no tax or delay, but acted upon the 
master, owner, or consignee of the vessel, after the termination 
of the voyage, and when he was within the territory of the State, 
mingling with its citizens, and subject to its laws. 

But the health law, as it is called, under consideration, is alto- 
gether different in its objects and means. It imposes a tax or 
duty on the passengers, officers, and sailors, holding the master 
responsible for the amount at the immediate termination of the 
voyage, and, necessarily, before the passengers have set their feet 
on land. The tax on each passenger, in the discretion of the legis- 
lature, might have been $5 or $10, or any other sum, amounting 
even to a prohibition of the transportation of passengers; and the 
professed object of the tax is as well for the benefit of juvenile 
offenders as for the marine hospital. And it is not denied that a 
considerable sum thus received has been applied to the former 
object. The amount and application of this tax are only impor- 
tant to show the consequences of the exercise of this power by the 
States. The principle involved is vital to the commercial power 
of the Union. 

The transportation of passengers is regulated by congress. More 
than two passengers for every five tons of the ship or vessel are 
prohibited, under certain penalties; and the master is required to 
report to the collector a list of the passengers from a foreign port, 
stating the age, sex, and occupation of each, and the place of their 
destination. In England, the same subject is regulated by act of 
parliament, and the same thing is done, it is believed, in all com- 
mercial countries. If the transportation of passengers be a branch 
of commerce, of which there can be no doubt, it follows that the 
act of New York, in imposing this tax, is a regulation of com- 
merce. It is a tax upon a commercial operation, — upon what may, 
in effect, be called an import. In a commercial sense, no just 
distinction can be made, as regards the law in question, between 

15 



226 CASES ON CONSTITUTIONAL LAW. 

the transportation of merchandise and passengers. For the trans- 
portation of both, the ship-owner realizes a profit, and each is the 
subject of a commercial regulation by congress. When the mer- 
chandise is taken from the ship, and becomes mingled with the 
property of the people of the State, like other propert}^, it is sub- 
ject to the local law; but until this Shall take place, the mer- 
chandise is an import, and is not subject to the taxing povfer of 
the State, and the same rule applies to passengers. Wlien they 
leave the ship and mingle with the citizens of the State, they 
become subject to its laws. 

In Gibbons v. Ogden, the court held that the act of laying 
"duties or imposts on imports or exports" is derived from the tax- 
ing power; and they lay much stress on the fact that this power 
is given in the same sentence as the jDower to "lay and collect 
taxes.^' "The power," they say, "to regulate commerce is given" 
in a separate clause, "as being entirely distinct from the right to 
levy taxes and imposts, and as being a new power, not before con- 
ferred;" and they remark, that, had not the State been prohibited, 
they might, under the power to tax, have levied "duties on im- 
ports or exports." 9 Wlieat., 201. 

The constitution requires that all "duties and imposts shall be 
uniform," and declares that "no preferences shall be given by 
any regulation of commerce or revenue to the ports of one State 
over those. of another." Xow, it is inexplicable to me how thir- 
teen or more independent States could tax imports under these 
provisions of the constitution. The tax must be uniform through- 
out the Union; consequently, the exercise of the power by any one 
State would be unconstitutional as it would destroy the uniformity 
of the tax. To secure this uniformity was one of the motives 
which led to the adoj^tion of the constitution. The want of it 
produced collisions in the commercial regulations of the States. 
But if, as is contended, these provisions of the constitution oper- 
ate only on the federal government, and the States are free to 
regulate commerce by taxing its operations in all cases where 
they are not expressly prohibited, the constitution has failed 
to accomplish the great object of those who adopted it. 

These provisions impose restrictions on the exercise of the com- 
mercial power, which was exclusively vested in congress; and is 
as binding on the States as any other exclusive power with which 
it is classed in the constitution. 

It is immaterial under what power duties on imports are im- 
posed. That they are the principal means by which commerce 
is regulated, no one can question. Whether duties shall be im- 



THE PASSENGER CASES. 227 

posed M'ith the view to protect our manufactures, or for purposes 
of revenue only, lias always been a leading subject of discussion in 
congress; and also what foreign articles may be admitted free of 
duty. The force of the argument, that things untouched by the 
regulating power have been equally considered with those of the 
same class on which it has operated, is not admitted by the coun- 
sel for the defendant. But does not all experience sustain the 
argument? A large amount of foreign articles brought into this 
country for several years, have been admitted free of duty. Have 
not these articles been considered by congress? The discussion 
in both houses of congress, the report by the committees of both, 
and the laws that have been enacted, show that they have been 
duly considered. 

Except to guard its citizens against diseases and paupers, the 
municipal power of a State cannot prohibit the introduction of 
foreigners brought to this country under the authority of con- 
gress. It may deny to them a residence, unless they shall give 
security to indemnify the public should they become paupere. The 
slave States have the power, as this court held in Groves v. Slaugh- 
ter, to prohibit slaves from being brought into them as mer- 
chandise. But this was on the ground that such a prohibition 
did not come within the power of congress "to regulate commerce 
among the several States.^" It is suggested that, under this view 
of the commercial power, slaves may be introduced into the free 
States. Does any one suppose that congress can ever revive the 
slave-trade? And if this were possible, slaves, thus introduced, 
would be free. 

As early as May 27, 1796,^ congress, enacted, that "the Presi- 
dent be authorized to direct the revenue-officers commanding forts 
and revenue cutters, to aid in the execution of quarantine, and 
also in the execution of the health laws of the States respectively." 
And by the act of Feb. 25, 1799,- which repealed the above act, 
more enlarged provisions were enacted, requiring the revenue-offi- 
cers of the United States to conform to and aid in the execution 
of the quarantine and health laws of the States. In the first sec- 
tion of this law there is a proviso that "nothing therein shall 
enable any State to collect a duty of tonnage or impost without 
the consent of congress." A proviso limits the provisions of the 
act into which it is introduced. But this proviso may be con- 
sidered as not restricted to this purpose. It shows with what 
caution congress guarded the commercial power, and it is an 

1 1 Stats, at Large, 474. 2 1 ib., 619. 



228 CASES ON CONSTITUTIONAL LAW. 

authoritative provision against its exercise by the States. An 
impost, in its enlarged sense, means any tax or tribute imposed 
by authority, and applies as well to a tax on persons as to a 
tax on merchandise. In this sense it was no doubt used in the 
above act. Any other construction would be an imputation on 
the intelligence of congress. 

If this power to tax passengers from a foreign country belongs 
to a State, a tax, on the same princijjle, may be imposed on all 
persons coming into or passing through it from any other State 
of the Union. And the New York statute does in fact lay a 
tax on passengers on board of any coasting-vessel which arrives 
at the port of New York, with an exception of passengers in ves- 
sels from New Jersey, Connecticut, and Ehode Island, who are 
required to pay for one trip in each month. All other passengers 
pay the tax every trip. 

If this may be done in New York, every other State may do 
the same, on all the lines of our internal navigation. Passengers 
on a steamboat which plies on' the Ohio, the Mississippi, or on 
any of our other rives, or on the lakes, may be required to pay 
a tax, imposed at the discretion of each State within which the 
boat shall touch. And the same principle will sustain a right in 
every State to tax all persons who shall pass through its terri- 
tory on railroad cars, canal boats, stages, or in any other manner. 
This would enable a State to establish and enforce a non-inter- 
course with every other State. 

The 9th section of the first article of the constitution declares: 
*'Nor shall vessels bound to or from one State, be obliged to 
enter, clear, or pay duties in another." But if the commercial 
power of the Union over foreign commerce does not exempt pas- 
sengers brought into the country from state taxation, they can 
claim no exemption under the exercise of the same power among 
the States. In McCulloch v. The State of Maryland, 4 Wheat., 
431, this court say: "That there is a plain repug-nance in con- 
ferring on one government a power to control the constitutional 
measures of another, which other, with respect to those very meas- 
ures, is declared to be supreme over that which exerts the control, 
is a proposition not to be denied." 

The officers and crew of the vessel are as much the instruments 
of commerce as the ship, and yet they are taxed under this health 
law of New York as such instruments. The passengers are taxed 
as passengers, being the subjects of commerce from a foreign 
country. By the 14th article of the treaty of 1794,^ with Eng- 
3 8 Stats, at Large, 116. 



THE PASSENGER CASES. 329 

land, it is stipulated that the people of each country may freely 
come, with their ships and cargoes, to the other, subject only to 
the laws and statutes of the two countries respectively. The stat- 
utes here referred to are those of the federal government, and not 
of the States. The general government only is known in our 
foreign intercourse. 

By the 4Gth section of the act of March, 1799,^ the wearing 
a])parel and other personal baggage, and the tools or implements 
of a mechanical trade, from a foreign port, are admitted free of 
duty. These provisions of the treaty and of the act are still in 
force, and they have a strong bearing on this subject. They are, 
in effect, repugnant to the act of New York. 

It is not doubted that a large portion, perhaps nine-tenths^ of 
the foreign passengers landed at the port of New York pass 
through the State to other places of residence. At such places, 
therefore, paui)erism must be increased much more by the influx 
of foreigners than in the city of New York. If, by reason of com- 
merce, a burden is thrown upon our commercial cities, congress 
should make suitable provisions for their relief. x\.nd I have no 
doubt this will be done. 

The police power of the State cannot draw within its jurisdic- 
tion objects which lie beyond it. It meets the commercial power 
of the Union in dealing with subjects under the protection of that 
power, yet it can only be exerted under peculiar emergencies, and 
to a limited extent. In guarding the safety, the health, and morals 
of its citizens, a State is restricted to appropriate and constitu- 
tional means. If extraordinary expense be incurred, an equitable 
claim to an indemnity can give no power to a State to tax objects 
not subject to its jurisdiction. 

The attorney-general of New York admitted that if the com- 
mercial power were exclusively vested in congress, no part of it 
can be exercised by a State. The soundness of tliis conclusion 
is not only sustainable by the decisions of this court, but by every 
approved rule of construction. That the power is exclusive seems 
to be as fully established as any other power under the consti- 
tution, which has been controverted. 

A tax or duty upon tonnage, merchandise, or passengers is a 
regulation of commerce, and cannot be laid by a State, except 
under the sanction of congress and for the purposes specified in 
the constitution. On the subject of foreign commerce, including 
the transportation of passengers, congress have adopted such reg- 
ulations as they deemed proper, taking into view our relations 

1 1 Stats, at Large, 661. 



230 CASES ON CONSTITUTIONAL LAW. 

with other countries. And tliis covers the whole gronnd. The 
act of New York which imposes a tax on passengers of a ship from 
a foreign port, in the manner provided, is a regulation of foreign 
commerce, which is exclusively vested in congress; and the act is, 
therefore, void. 

ISToEEis V. City of Boston. 

This is a writ of error, which brings before the court the judg- 
ment of the supreme court of the State of Massachusetts. 

"An act relating to alien passengers," passed the 20th of April, 
1837, by the legislature of Massachusetts, contains the following 
jDrovisions: — 

"§ 1. When any vessel shall arrive at any port or harbor 
within this State, from any port or place without the same, with 
alien passengers on board, the officer or officers whom the mayor 
and aldermen of the city, or the selectmen of the town, where 
it is proposed to land such passengers, are hereby authorized and 
required to appoint, shall go on board such vessels and examine 
into the condition of said ^jassengers. 

"§ 2. If, on such examination, there shall be found, among 
said passengers, any lunatic, idiot, maimed, aged, or infirm person, 
incompetent, in the opinion of the officer so examining, to main- 
tain themselves, or who have been paupers in any other country, 
no such alien passenger shall be permitted to land, until the mas- 
ter, owner, consignee, or agent of such vessel shall have given to 
such city or town a bond in the sum of $1,000, with good and 
sufficient security, that no such lunatic or indigent passenger shall 
become a city, town, or state charge within ten years from the date 
of said bond. 

"§ 3. No alien passenger, other than those spoken of in the 
preceding section, shall be permitted to land, until the master, 
owner, consignee, or agent of such vessel shall pay to the regularly 
appointed boarding officer the sum of two dollars for each passen- 
ger so landing; and the money so collected shall be paid into 
the treasury of the city or town, to be appropriated, as the city or 
town may direct, for the support of foreign paupers." 

The plaintiff being an inhabitant of St. John^s, in the Province 
of New Brunswick and kingdom of Great Britain, arriving in 
the port of Boston, from that place, in command of a schooner 
called The Union Jack, which had on board nineteen alien passen- 
gers, for each of which two dollars were demanded of the plaintiff, 
and paid by him, on protest that the exaction was illegal. An 



THE PASSENGER CASES. 231 

action being brought, to recover back this money, against the city 
of Boston, in the court of common pleas, under the instructions 
of the court, the jury found a verdict for the defendant, on v/hich 
judgment was entered, and which was affirmed on a writ of error 
to the supreme court. 

Under the 1st and 2d sections of the above act, the persons 
appointed may go on board of a ship from a foreign port, which 
arrives at the port of Boston with alien passengers on board, and 
examine whether any of them are lunatics, idiots, maimed, aged, 
or infirm, incompetent to maintain themselves, or have been 
paupers in any other country, and not permit such persons to be 
put on shore, unless security shall be given that they shall not 
become a city, town, or state charge. This is the exercise of an 
unquestionable power in the State to protect itself from foreign 
paupers and other persons who would be a public charge; but the 
nineteen alien passengers for whom the tax was paid did not 
cpme, nor any one of them, within the second section. The tax 
of two dollars was paid by the master for each of these passengers 
before they were permitted to land. This, according to the view 
taken in the above case of Smith v. Turner, was a regulation of 
commerce, and not being within the power of the State, the act 
imposing the tax is void. 

The fund thus raised was no doubt faithfully applied for the 
support of foreign paupers, but the question is one of power, and 
not of policy. The judgment of the supreme court, in my opin- 
ion, should be reversed, and this cause be remanded to that covirt, 
with instructions to carry out the judgment of this court. 

NoEEis V. City of Boston, and Smith v. Tuknee. 

Wayne, J. I agree with Mr. Justice McLean, Mr. Justice 
Catron, Mr. Justice McKinley, and Mr. Justice Grier, that the 
laws of Massachusetts and New York, so far as they are in ques- 
tion in these cases, are unconstitutional and void. I would not 
say so if I had any, the least, doubt of it; for, I think it obliga- 
tory upon this court, when there is a doubt of the- unconstitutional- 
ity of a law, that its judgment should be in favor of its validity. I 
have formed my conclusions in these cases with this admission 
constantly in mind. 

Before stating, however, what they are, it will be well for me 
to say that the four judges and myself, who concur in giving the 
judgment in these cases, do not differ in the grounds upon which 
our judgment has been formed, except in one particular, in no 
way at variance with our united conclusion; and that is, that a 



233 CASES ON CONSTITUTIONAL LAW. 

majority of us do not think it necessary in these cases to reaffirm, 
with our brother McLean, what this court has long since decided, 
that the constitutional power to regulate "commerce with foreign 
nations, and among the several States, and with the Indian tribes," 
is exclusively vested in congress, and that no part of it can be 
exercised by a State. 

I believe it to be so, just as it is expressed in the preceding sen- 
tence. And in the sense in which those words were used by this 
court in the case of Gibbons v. Ogden, 9 W^ieat., 198. All that 
was decided in that case remains unchanged by any subsequent 
opinion or judgment of this court. Some of the judges of it have, 
in several cases, expressed opinions that the power to regulate 
commerce is not exclusively vested in Congress. But they are 
individual opinions, without judicial authority to overrule the 
contrary conclusion, as it was given by this court in Gibbons v. 
Ogden. 

Still, I do not think it necessary to reaffirm that position in 
these cases as a part of our judgments upon them. . . . 

In my view, ... I think the court means now to decide: — 

1. That the acts of N'ew York and Massachusetts imposing a 
tax upon passengers, either foreigners or citizens, coming into the 
ports in those States, either in foreign vessels or vessels of the 
United States, from foreign nations or from ports in the United 
States, are unconstitutional and void, being in their nature regula- 
tions of commerce contrary to the grant; in the constitution to con- 
gress of the power to regulate commerce with foreign nations and 
among the several States. 

2. That the States of this Union cannot constitutionally tax 
the commerce of the United States for the purposes of paying any 
expense incident to the execution of their police laws; and that 
the commerce of the United States includes an intercourse of 
persons, as well as the importation of merchandise. 

3. That the acts of Massachusetts and ISTew York in question 
in these cases conflict with treaty stipulations existing between 
the United States and Great Britain, permitting the inhabitants 
of the two countries "freely and securely to come, with their ships 
and cargoes, to all places, ports, and rivers in the territories of each 
country to which other foreigners are permitted to come, to enter 
into the same, and to remain and reside in any parts of said terri- 
tories, respectively; also, to hire and occupy houses and warehouses 
for the purposes of their commerce, and generally the merchants 
and traders of each nation respectively shall enjoy the most com- 
plete protection and security for their commerce, but subject al- 



THE PASSENGER CASES. 233 

ways to the laws and statutes of the two countries respectively;" 
and that said laws are therefore unconstitutional and void. 

4. That the congress of the United States having by sundry 
acts, passed at different times, admitted foreigners into the United 
States with their personal luggage and tools of trade, free from 
all duty or imposts, the acts of Massachusetts and New York, 
imposing any tax upon foreigners or immigrants for any purpose 
whatever, whilst the vessel is in transitu to her port of destina- 
tion, though said vessel may have arrived within the Jurisdictional 
limits of either of the States of Massachusettts and New York, 
and before the passengers have been landed, are in violation of 
said acts of congress, and therefore unconstitutional and void. 

5. That the acts of Massachusetts and New York, so far as they 
impose any obligation upon the owners or consignees of vessels, 
or upon the captains of vessels or freighters of the same, arriving 
in the ports of the United States within the said States, to pay 
any tax or duty of any kind whatever, or to be in any way re- 
sponsible for the same, for passengers an-iving in the United 
States, or coming from a port in the United States, are unconsti- 
tutional and void, being contrary to the constitutional grant to 
congress of the power to regulate commerce with foreign nations 
and among the several States, and to the legislation of congress 
under the said power, by which the United States have been laid 
off into collection districts, and ports of entry established within 
the same, and commercial regulations prescribed, under which 
vessels, their cargoes and passengers, are to be admitted into the 
ports of the United States, as well from abroad as from other ports 
of the United States, That the aot of New York now in ques- 
tion, so far as it imposes a tax upon passengers arriving in vessels 
from other ports in the United States, is properly in this case 
before this court for construction, and that the said tax is uncon- 
stitutional and void. That the ninth section of the first article of 
the constitution includes within it the migration of other persons, 
as well as the importation of slaves, and in terms recognizes that 
other persons, as well as slaves, may be the subjects of importation 
and commerce. 

G. That the 5th clause of the 9th section of the 1st article 
of the constitution, which declares that "no preference shall be 
given by any regulation of commerce or revenue to the ports of 
one State over those of another State; nor shall vessels bound to 
or from one State, be obliged to enter, clear, or pay duties in an- 
other," is a limitation upon the power of congress to regulate com- 
merce for the purpose of producing entire commercial equality 



234 CASES ON CONSTITUTIONAL LAW. 

within the United States, and also a prohibition upon the States 
to destroy such equality by any legislation prescribing a condition 
upon which vessels bound from one State, shall enter the ports of 
another State. 

7. That the acts of Massachusetts and New York, so far as 
they impose a tax upon passengers, are unconstitutional and void, 
because each of them so far conflicts with the first clause of the 
eighth section of the first article of the constitution, which en- 
joins that all duties, imposts, and excises shall be uniform through- 
out the United States; because the constitutional uniformity en- 
Joined in respect to duties and imposts is as real and obligatory 
upon the States, in the absence of all legislation by congress, as if 
the uniformity had been made by the legislation of congress; and 
that such constitutional uniformity is interfered with and de- 
stroyed by any State imposing any tax upon the intercourse of 
persons from State to State, or from foreign countries to the 
United States. 

8. That the power in congress to regulate commerce with for- 
eign nations and among the several States, includes navigation 
upon the high seas, and in the bays, harbors, lakes, and navigable 
waters within the United States, and that any tax by a State in 
any way affecting the right of navigation, or subjecting the ex- 
ercise of the right to a condition, is contrary to the aforesaid grant. 

9. That the States of this Union may, in the exercise of their 
police powers, pass quarantine and health laws, interdicting ves- 
sels coming from foreign ports, or ports within the United States, 
from landing passengers and goods, prescribe the places and time 
for vessels to quarantine, and impose penalties upon persons for 
violating the same; and that such laws, though affecting com- 
merce in its transit, are not regulations of commerce prescribing 
terms upon which merchandise and persons shall be admitted into 
the ports of the United States, but precautionary regulations to 
prevent vessels engaged in commerce from introducing disease 
into the ports to which they are bound; and that the States may, 
in the exercise of such police power, without any violation of the 
power in congress to regulate commerce, exact from the owner or 
consignee of a quarantined vessel, and from the passengers on 
board of her, such fees as will pay to the State the cost of their 
detention and of the purification of the vessel, cargo, and apparel 
of the persons on board. . . . 

[Chief Justice Taney, with whom Justice Nelson" con- 
curred, and Justices Daniel and Woodbuey delivered dissent- 
ing opinions.] 



COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 335 

COOLEY V. THE BOARD OF WARDENS OF THE PORT 
OF PHILADELPHIA. 

12 Howard, 299. Decided 185L 
The case is stated in the opinion of the coiirt. . . . 

Curtis, J., delivered the opinion of tlie conrt. 

These cases are brought liere by writs of error to the supreme 
court of the commonwealth of Pennsylvania. 

They are actions to recover half-pilotage fees under the 29th 
section of the act of the legislature of Pennsylvania, passed on the 
second day of March, 1803. The plaintiff in error alleges that the 
highest court of the State has decided against a right claimed by 
him under the constitution of the United States. That right is, 
to be exempted from the payment of the sums of money, demanded 
pursuant to the state law above referred to, because that law con- 
travenes several provisions of the constitution of the United 
States. 

The particular section of the State law drawn in question is as 
follows: "That every ship or vessel arriving from, or bound to 
any foreign port or place, and every ship or vessel of the burden 
of seventy-five tons or more, sailing from, or bound to any port 
not within the River Delaware, shall be obliged to receive a pilot. 
And it shall be the duty of the master of every such ship or vessel, 
within thirty-six hours next after the arrival of such ship or vessel 
at the city of Philadelphia, to make report to the master-warden 
of the name o2 such ship or vessel, her draught of water, and the 
name of the pilot who shall have conducted her to the port. And 
when any such vessel shall be outward bound, the master of such 
vessel shall make known to the wardens the name of such vessel, 
and of the pilot who is to conduct her to the capes, and her 
draught of water at that time. And it shall be the duty of the 
wardens to enter every such vessel in a book to be by them kept 
for that purpose, without fee or reward. And if the master of any 
ship or vessel shall neglect to make such report, he shall forfeit 
and pay the sum of $60. And if the master of any such ship or 
vessel shall refuse or neglect to take a pilot, the master, owner, or 
consignee of such vessel shall forfeit and pay to the warden afore- 
said, a sum equal to the half-pilotage of such ship or vessel, to the 
use of the Society for the Relief, etc., to be recovered as pilotage 
in the manner hereinafter directed: Provided always, that where 
it shall appear to the warden that in case of an inward bound vessel. 



236 CASES ON CONSTITUTIONAL LAW. 

a pilot did not offer before she had reached Eeedy Island; or, in 
case of an outward bound vessel, that a pilot could not be ob- 
tained for twenty-four hours after such vessel was ready to de- 
part, the penalty aforesaid, for not having a pilot, shall not be 
incurred." This is one section of "An Act to establish a Board of 
Wardens for the Port of Philadelphia, and for the Eegulation of 
Pilots and Pilotages, etc.," and the scope of the act is, in con- 
formity with the title, to regulate the whole subject of the pilotage 
of that port. 

We think this particular regulation concerning half-pilotage fees 
is an appropriate part of a general system of regulations of this 
subject. Testing it by the practice of commercial States and coun- 
tries legislating on this subject, we find it has usually been deemed 
necessary to make similar provisions. ISTumerous laws of this 
kind are cited in the learned argument of the counsel for the de- 
fendant in error; and their fitness, as part of a system of pilotage, 
in many places, may be inferred from their existence in so many 
different States and countries. Like other laws, they are framed 
to meet the most usual cases, qum freqiientms accidunt; they rest 
upon the propriety of securing lives and property exposed to the 
perils of a dangerous navigation, by taking on board a person pe- 
culiarly skilled to encounter or avoid them; upon the policy of dis- 
couraging the commanders of vessels from refusing to receive such 
persons on board at the proper times and places; and upon the 
expediency, and even intrinsic justice, of not suffering those who 
have incurred labor, and expense, and danger, to place themselves 
in a position to render important service generally necessary, to 
go unrewarded, because the master of a particular vessel either 
rashly refuses their proffered assistance, or, contrary to the gen- 
eral experience, does not need it. There are many cases, in which 
an offer to perform, accompanied by present ability to perform, 
is deemed by law equivalent to performance. The laws of com- 
mercial States and countries have made an offer of pilotage serv- 
ice one of those cases; and we cannot pronounce a law which does 
this to be so far removed from the usual and fit scope of laws for 
the regulation of pilots and pilotage, as to be deemed, for this 
cause, a covert attempt to legislate upon another subject under the 
appearance of legislating on this one. 

It is urged that the second section of the act of the legislature 
of Pennsylvania, of the 11th of June, 1833, proves that the State 
had other objects in view than the regulation of pilotage. That 
section is as follows: — 

"And be it further enacted, by the authority aforesaid, that 



COOLEY V. BOARD OF WARDENS OF PHILADEl^PHIA. 237 

from and after the first day of July next, no liealtli-fee or half- 
pilotage shall be charged on any vessel engaged in the Pennsyl- 
vania coal trade." 

It must be remembered, that the fair objects of a law imposing 
half-pilotage when a pilot is not received, may be secured, and at 
the same time some classes of vessels exempted from such charge. 
Thus, the very section of the act of 1803, now under consideration, 
does not apply to coasting vessels of less burden than seventy-five 
tons, nor to those bound to, or sailing from, a port in the Eiver 
Delaware. The purpose of the law being to cause masters of such 
vessels as generally need a pilot, to secure one, and to secure to 
the pilots a fair remuneration for cruising in search of vessels, or 
waiting for employment in port, there is an obvious propriety in 
having reference to the number, size, and nature of employment 
of vessels frequenting the port; and it will be found, by an ex- 
amination of the different systems of these regulations, which 
have from time been made in this and other countries, that the 
legislative discretion has been constantly exercised in making dis- 
criminations, founded on differences both in the character of the 
trade, and the tonnage of vessels engaged therein. 

We do not perceive anything in the nature or extent of this 
particular discrimination in favor of vessels engaged in the coal 
trade, which would enable us to declare it to be other than a fair 
exercise of legislative discretion, acting upon the subject of the 
regulation of the pilotage of this port of Philadelphia, with a view 
to operate upon the masters of those vessels, who, as a general 
rule, ought to take a pilot, and with the further view of relieving 
from the charge of half-pilotage such vessels as from their size, 
or the nature of their employment, should be exempted from con- 
tributing to the support of pilots, except so far as they actually 
receive their services. In our judgment, though this law of 1832 
has undoubtedly modified the 29th section of the act of 1803, -and 
both are to be taken together as giving the rule on this subject 
of half-pilotage, yet this change in the rule has not changed the 
nature of the law, nor deprived it of the character and attributes 
of a law for the regulation of pilotage. 

Nor do we consider that the appropriation of the sums received 
under this section of the act, to the use of the society for the relief 
of distressed and decayed pilots, their widows and children, has 
any legitimate tendency to impress on it the character of a revenue 
law. "WHiether these sums shall go directly to the use of the indi- 
vidual pilots by whom the service is tendered, or shall form a 
common fund, to be administered by trustees for the benefit of 



238 CASES ON CONSTITUTIONAL LAW. 

such pilots and their families as may stand in peculiar need of it, 
is a matter resting in legislative discretion, in the proper exercise 
of which the pilots alone are interested. 

For these reasons, we cannot yield our assent to the argument 
that this provision of law is in conflict with the second and third 
clauses of the tenth section of the first article of the constitution, 
which prohibit a State, without the assent of congress, from lay- 
ing any imposts or duties on imports or exports, or tonnage. This 
provision of the constitution was intended to operate upon sub- 
jects actually existing and well understood when the constitution 
was formed. Imposts and duties on imports, exports, and ton- 
nage were then known to the commerce of the civilized world to 
be as distinct from fees and charges for pilotage, and from the 
penalties by which commercial States enforced their pilot-laws, 
as they were from charges for w^harfage or towage, or any other 
local port-charges for services rendered to vessels or cargoes; and 
to declare that such pilot-fees or penalties are embraced within 
the words imposts or duties on imports, exports, or tonnage, would 
be to confound things essentially different, and which must have 
been known to be actually different by those who use this lan- 
guage. It cannot be denied that a tonnage duty, or an impost 
on imports or exports, may be levied under the name of pilot 
dues or penalties; and certainly it is the thing, and not the name, 
which is to be considered. But, having previously stated that, in 
this instance, the law complained of does not pass the appropriate 
line which limits laws for the regulation of pilots and pilotage, 
the suggestion that this law levies a duty on tonnage or on im- 
ports or exports is not admissible; and, if so, it also follows that, 
this law is not repugnant to the first clause of the eighth section 
of the first article of the constitution, which declares that all 
duties, imposts, and excises shall be uniform throughout the 
United States; for, if it is not to be deemed a law levying a duty, 
impost, or excise, the want of uniformity throughout the United 
States is not objectionable. Indeed, the necessity of conforming 
regulations of pilotage to the local peculiarities of each port, and 
the consequent impossibility of having its charges uniform 
throughout the United States, would be sufficient of itself to prove ■ 
that they could not have been intended to be embraced within 
this clause of the constitution; for it cannot be supposed uni- 
formity was required, when it must have been known to be im- 
practicable. 

It is further objected that this law is repugnant to the fifth 
clause of the ninth section of the first article of the constitution, 



COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 239 

namely: "Xo preference shall be given, by any regulation of 
commerce or revenue, to the ports of one State over those of an- 
other; nor shall vessels, to or from one State, be obliged to enter, 
clear, or pay duties in another." 

But, as already stated, pilotage fees are not duties within the 
meaning of the constitution; and, certainly, Pennsylvania does 
not give a preference to the port of Philadelphia, by requiring the 
masters, owners, or consignees of vessels sailing to or from that 
port, to pay the charges imposed by the twenty-ninth section of 
the act of 1803. It is an objection to, and not a ground of prefer- 
ence of a port, that a charge of this kind must be borne by vessels 
entering it; and, accordingly, the interests of the port require, 
and generally produce, such alleviations of these charges as its 
growing commerce from time to time renders consistent with the 
general policy of the pilot laws. This State, by its act of the 24:tli 
of March, 1851, has essentially modified the law of 1803, and fur- 
ther exempted many vessels from the charge now in question. 
Similar changes may be observed in the laws of New York, Massa- 
chusetts, and other commercial States, and they undoubtedly 
spring from the conviction that burdens of this kind, instead of 
operating to give a preference to a port, tend to check its com- 
merce, and that sound policy requires them to be lessened and re- 
moved as early as the necessities of the system will allow. 

In addition to what has been said respecting each of these con- 
stitutional objections to this law, it may be observed that similar 
laws have existed and been practised on in the States since the 
adoption of the federal constitution; that, by the act of the 7th 
of August, 1789, 1 Stats, at Large, 54, congress declared that all 
pilots in the bays, inlets, rivers, harbors, and ports of the United 
States, shall continue to be regulated in conformity with the exist- 
ing laws of the States, etc.; and that this contemporaneous con- 
struction of the constitution since acted on with such uniformity 
in a matter of much public interest and importance, is entitled 
to great weight, in determining whether such a law is repug- 
nant to the constitution, as levying a duty not uniform through- 
out the United States, or, as giving a preference to the ports of 
one State over those of another, or, as obliging vessels to or from 
one State to enter, clear, or pay duties in another. Stuart v. 
Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat., 30*1; Cohens v. 
The Commonwealth of Virginia, 6 AVheat.,- 264; Prigg v. The 
Commonwealth of Pennsylvanina, 16 Pet., 621. 

The opinion of the court is, that the law now in question is 



240 CASES ON CONSTITUTIONAL LAW. 

not reiDugnant to either of tlie above-mentioned clauses of the 
constitution. 

It remains to consider the objection tliat it is repugnant to the 
third clause of the eighth section of the first article. "The con- 
gress shall have power to regulate commerce with foreign nations 
and among the several States, and with the Indian tribes." 

That the power to regulate commerce includes the regulation 
of navigation, we consider * settled. And when we look to the 
nature of the service performed by pilots, to the relations which 
that service and its compensations bear to navigation between the 
several States, and between the ports of the United States and 
foreign countries, we are brought to the conclusion, that the 
regulation of the qualifications of pilots, of the modes and times 
of offering and rendering their services, of the responsibilities 
which shall rest upon them, of the powers they shall possess, of 
the compensation they may demand, and of the penalties by which 
their rights and duties may be enforced, do constitute regulations 
of navigation, and consequently of commerce, within the just 
meaning of this- clause of the constitution. 

The power to regulate navigation is the power to prescribe rules 
in conformity with which navigation must be carried on. It ex- 
tends to the persons who conduct it, as well as to the instruments 
used. Accordingly, the first congress assembled under the con- 
stitution passed laws, requiring the masters of ships and vessels 
of the United States to be citizens of the United States, and estab- 
lished many rules for the government and regulation of officers 
and seamen. 1 Stats, at Large, 55, 131. These have been from 
time to time added to and changed, and we are not aware that 
their validity has been questioned. 

ISTow, a pilot, so far as respects the navigation of the vessel in 
that part of the voyage which is his pilotage-ground, is the tem- 
joorary master charged with the safety of the vessel and cargo, and 
of the lives of those on board, and intrusted with the command of 
the crew. He is not only one of the persons engaged in navigation, 
but he occujnes a most important and responsible place among 
those thus engaged. And if congress has power to regulate the 
seamen who assist the pilot in the management of the vessel, a 
jDower never denied, we can perceive no valid reason why the pilot 
should be beyond the reach of the same power. It is true that, 
according to the usages of modern commerce on the ocean, the pilot 
is on board only during a part of the voyage between ports of dif- 
ferent States, or between ports of the United States and foreign 
countries; but if he is on board for such a purpose and during so 



COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 341 

much of the voyage as to be engaged in navigation, the power to 
regulate navigation extends to him while thus engaged, as clearly 
as it would if he were to remain on board throughout the whole 
passage, from port to port. For it is a power which extends to 
every part of the voyage, and may regulate those who conduct or 
assist in conducting navigation in one part of a voyage as much 
as in another part, or during the whole voyage. 

Nor should it be lost sight of, that this subject of the regulation 
of pilots and pilotage has an intimate connection with, and an 
important relation to, the general subject of commerce with for- 
eign nations and among the several States, over which it was one 
main object of the constitution to create a national control. 
Conflicts between the. laws of neighboring States, and discrimina- 
tions favorable or adverse to commerce with particular foreign 
nations, might be created by state laws regulating pilotage, deeply 
affecting that equality of commercial rights, and that freedom 
from state interference, which those who formed the constitution 
were so anxious to secure, and which the experience of more than 
half a century has taught us to value so highly. The apprehen- 
sion of this danger is not speculative merely. For, in 1837, con- 
gress actually interposed to relieve the commerce of the country 
from serious embarrassment, arising from the laws of different 
States, situate upon waters which are the boundary between them. 
This was done l)y an enactment of the 2d of March, 1837,^ in 
the following words: — 

"Be it enacted, that it shall and may be lawful for the master 
or commander of any vessel coming into or going out of any port 
situate upon waters which are the boundary between two States, 
to employ any pilot duly licensed or authorized by the laws of 
either of the States bounded on the said waters, to pilot said vessel 
to or from said port, any law, usage, or custom to the contrary 
notwithstanding." 

The act of 1789, 1 Stats, at Large, 54, already referred to, con- 
tains a clear legislati^^e exposition of the constitution by the first 
congress, to the effect that the power to regulate pilots was con- 
ferred on congress by the constitution; as does also the act of 
March the 2d, 1837, the terms of which have Just been given. The 
weight to be allowed to this contemporaneous construction, and 
the practice of congress under it, has, in another connection, been 
adverted to. And a majority of the court are of opinion, that a 
regulation of pilots is a regulation of commerce, within the grant 
to congress of the commercial power, contained in the third clause 
of the eighth section of the first article of the constitution. 
16 1 5 Stats, at Large, 153. 



342 CASES ON CONSTITUTIONAL LAW. 

It becomes necessan-, therefore, to consider whether this law of 
Pennsylvania, being a regulation of commerce, is valid. 

The act of congress of the Tth of August, 1T89, § -i, is as 
follows: — 

'•'That all pilots in the bays, inlets, rivers, harbors, and ports of 
the United States shall continue to be regulated in conformity 
with the existing laws of the States, respectively, wherein such 
pilots may be, or Avith such laws as the States may respectively 
hereafter enac-t for the purpose, until further legislative provision 
shall be made b}' congress." 

If the law of Pennsylvania, now in question, had been in exist- 
ence at the date of this act of congress, we might hold it to have 
been adopted by congress, and thus made a law of the United 
States, and so valid. Because this act does, in effect, give the 
force of an act of congress, to the then existing state laws on this 
subject, so long as they should continue unrepealed by the State 
which enacted them. 

But the law on which these actions are founded, was not enacted 
till 1803. Wliat effect then can be attributed to so much of the 
act of 1789 as declares that pilots shall continue to be regulated 
in conformity "with such laws as the States may respectively here- 
after enact for the purpose, until further legislative provision 
shall be made by congress"? 

If the States were divested of the power to legislate on this 
subject by the grant of the commercial power to congress, it is 
plain this act could not confer upon them power thus to legislate. 
If the constitution excluded the States from making any law 
regulating commerce, certainly congress cannot regrant, or in any 
manner reconvey to the States that power. And yet this act of 
1789 gives its sanction only to laws enacted by the States. This 
necessarih" implies a constitutional power to legislate; for only a 
rule created by the sovereign power of a State acting in its legis- 
lative capacity, can be deemed a law enacted by a State; and if 
the State has so limited its sovereign power that it no longer ex- 
tends to a particular subject, manifestly it cannot, in any proper 
sense, be said to enact laws thereon. Entertaining these views, 
we are brought directly and unavoidably to the consideration of 
the question, whether the grant of the commercial power to con- 
gress did per se deprive the States of all power to regulate pilots. 
This question has never been decided by this court, nor, in our 
Judgment, has any case depending upon all the considerations 
which must govern this one, come before this court. The grant 
of commercial power to congress does not contain any terms 



COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 343 

which expressly exchide the States from exercising an authority 
over its subject-matter. If they are exchided, it must be be- 
cause the nature of the power thus granted to congress requires 
that a similar authority should not exist in the States. If it were 
conceded on the one side that the nature of this power, like that 
to legislate for the Disitrict of Columbia, is absolutely and totally 
repugnant to the existence of similar power in the States, proba- 
bly no one would deny that the grant of the power to congress, 
as effectually and perfectly excludes the States from all future 
legislation on the subject, as if express words had been used to 
exclude them. And on the other hand, if it were admitted that 
the existence of this power in congress, like the power of taxa- 
tion, is compatible with the existence of a similar power in the 
States, then it would be in conformity with the contemporary 
exposition of the constitution (Federalist, No. 32), and with tbe 
judicial construction given from time to time by this court, after 
the most deliberate consideration, to hold that the mere grant 
of such a power to congress, did not imply a prohibition on the 
States to exercise the same power; that it is not the mere exist- 
ence of such a power, but its exercise by congress, which may be 
incompatible with the exercise of the same power by the States, 
and that the States may legislate in the absence of congressional 
regulations. Sturges v. Crowninshield, 4 Wheat., 193; Houston 
V. Moore, 5 Wheat., 1; Wilson v. Blackbird Creek Co., 3 Pet., 251. 

The diversities of opinion, therefore, which have existed on this 
subject have arisen from the different views taken of the nature 
of this power. But when the nature of a power like this is 
spoken of, when it is said that the nature of the power requires 
that it should be exercised exclusively by congress, it must be in- 
tended to refer to the subjects of that power, and to say they are 
of such a nature as to require exclusive legislation by congress. 
Now, the power to regulate commerce, embraces a vast field, con- 
taining not only many, but exceedingly various subjects, quite 
unlike in their nature; some imperatively demanding a single 
uniform rule, operating equally on the commerce of the United 
States in every port; and some, like the subject now in question, 
as imperatively demanding that diversity, which alone can meet 
the local necessities of navigation. 

Either absolutely to affirm, or deny that the nature of this 
power requires exclusive legislation by congress, is to lose sight 
of the nature of the subjects of this power, and to assert con- 
cerning all of them, what is really applicable but to a part. What- 
ever subjects of this power are in their nature national, or admit 



244 CASES ON CONSTITUTIONAL LAW. 

only of one ■uniform system, or plan of regulation, may justly be 
said to be of such, a nature as to require exclusive legislation by 
congress. That this cannot be affirmed of laws for the regulation 
of pilots and pilotage, is plain. The act of 1789 contains a clear 
and authoritative declaration by the first congress, that the nature 
of this subject is such that until congress should find it necessary 
to exert its power, it should be left to the legislation of the States; 
that it is local and not national; that it is likely to be the best 
provided for, not by one system, or plan of regulation, but by as 
many as the legislative discretion of the several States should deem 
applicable to the local peculiarities of the ports within their limits. 
Viewed in this light, so much of this act of 1789, as declares 
that pilots shall continue to be regulated "by such laws as the 
States may respectively hereafter enact for that purpose," instead 
of being held to be inoperative, as an attempt to confer on the 
States a power to legislate, of which the constitution had deprived 
them, is allowed an appropriate and important signification. It 
manifests the understanding of congress, at the outset of the gov- 
ernment, that the nature of this subject is not such as to require 
its exclusive legislation. The practice of the States, and of the 
national government, has been in conformity with this declara- 
tion, from the origin of the national government to this time; 
and the nature of the subject when examined, is such as to leave 
no doubt of the superior fitness and propriety, not to say the ab- 
solute necessity, of different systems of regulation, drawn from 
local knowledge and experience, and conformed to local wants. 
How, then, can we say that, by the mere grant of power to regu- 
late commerce, the States are deprived of all the power to legis- 
late on this subject, because from the nature of the power the 
legislation of congress must be exclusive? This would be to affirm 
that the nature of the power is, in this case, something different 
from the nature of the subject to which, in such case, the power 
extends, and that the nature of the power necessarily demands, in 
all cases, exclusive legislation by congress, while the nature of one 
of the subjects of that power, not only does not require such ex- 
clusive legislation, but may be best provided for by many different 
systems enacted by the States, in conformity with the circum- 
stances of the ports within their limits. In construing an instru- 
ment designed for the formation of a government, and in deter- 
mining the extent of one of its important grants of power to 
legislate, we can make no such distinction between the nature of 
the power and the nature of the subject on which that power was 
intended practically to operate, nor consider the grant more ex- 



COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 245 

tensive by affirming of tlie power, what is not true of its subject 
now in question. 

It is tlie opinion of a majority of the court that the mere grant 
to congress of the power to regulate commerce, did not deprive 
the States of power to regulate pilots, and that although congress 
has legislated on this subject, its legislation manifests an inten- 
tion, with a single exception, not to regulate this subject, but to 
leave its regulation to the several States. To these precise ques- 
tions, which are all we are callefl on to decide, this opinion must 
be understood to be confined. It does not extend to the question 
what other subjects, under the commercial power, are within the 
exclusive control of congress, or may be regulated by the States 
in the absence of all congressional legislation; nor to the general 
question, how far any regulation of a subject by congress may be 
deemed to operate as an exclusion of all legislation by the States 
upon the same subject. We decide the precise questions before us, 
upon what we deem sound principles, applicable to this particular 
subject in the state in which the legislation of congress has left 
it. We go no further. 

We have not adverted to the practical consequences of holding 
that the States possess no power to legislate for the regulation of 
pilots, though in our apprehension these would be of the most 
serious importance. For more than sixty years this subject has 
been acted on by the States, and the systems of some of them 
created and of others essentially modified during that period. To 
hold that pilotage fees and penalties demanded and received dur- 
ing that time have been illegally exacted, under color of void laws, 
would work an amount of mischief which a clear conviction of 
constitutional duty, if entertained, must force us to occasion, but 
which could be viewed by no just mind without deep regret. Nor 
would the mischief be limited to the past. If congress were now 
to pass a law adopting the existing state laws, if enacted without 
authority, and in violation of the constitution, it would seem to 
us to be a new and questionable mode of legislation. 

If the grant of commercial power in the constitution has de- 
prived the States of all power to legislate for the regulation of 
pilots, if their laws on this subject are mere usurpations upon the 
exclusive power of the general government, and utterly void, it 
may be doubted whether congress could, with propriety, recognize 
them as laws, and adopt them as its own acts; and how are the 
legislatures of the States to proceed in future, to watch over and 
amend these laws, as the progressive wants of a growing com- 
merce will require, when the members of those legislatures are 



346 CASES ON CONSTITUTIONAL LAW. 

made aware that they cannot legislate on this subject without vio- 
lating the oaths they have taken to support the constitution of 
the United States? 
'I We are of oj)inion that this state law was enacted by virtue of a 
power, residing in the State to legislate, that it is not in conflict 
with any law of congress; that it does not interfere with any 
system which congress has established by making regulations, or 
by intentionally leaving individuals to their own unrestricted 
action; that this law is therefore valid, and the judgment of the 
supreme court of Pennsylvania in each case must be affirmed. 

McLean, J., and Wayne, J., dissented; and Daniel, J., although 
he concurred in the judgment of the court, yet dissented from its 
reasoning. 

[Messes. Justices McLean" and Daniel delivered separate 
opinions.] 



CASE OF THE STATE FEEIGHT TAX. 
EEADING EAILEOAD COMPANY v. PENNSYLVANIA. 

15 Wallace, 232. Decided 1872. 
[The facts are sufficiently stated in the opinion of the court.] 

Me. Justice Steoxg delivered the opinion of the court. 

We are called upon, in this case, to review a judgment of the 
Supreme Court of Pennsylvania, affirming the validity of a stat- 
ute of the State, which the plaintiffs in error allege to be repug- 
nant to the Federal Constitution, 

The case presents the question whether the statute in ques- 
tion, — so far as it imposes a tax upon freight taken up within the 
State and carried out of it, or taken up outside the State and de- 
livered within it, or, in different words, upon all freight other 
than that taken up and delivered within the State, — ^is not repug- 
nant to the provision of the Constitution of the LTnited States 
which ordains "that Congress shall have power to regulate com- 
merce with foreign nations and among the several States," or in 
conflict with the provision that "no State shall, without the con- 
sent of Congress, lay any imposts or duties on imports or exports, 
except what may be absolutely necessary for executing its inspec- 
tion laws." 



THE STATE FREIGHT TAX. 247 

The question is a grave one. It calls upon us to trace the line, 
always difhcult to be traced, between the limits of State sov- 
ereignty in imposing taxation, and the power and duty of the 
Federal government to protect and regulate interstate commerce. 
While, upon the one hand, it is of the utmost importance that the 
State should possess the power to raise revenue for all the pur- 
poses of a State government, by any means, and in any manner 
not inconsistent with the powers which the people of the States 
have conferred upon the General Government, it is equally im- 
portant that the domain of the latter should be preserved free 
from invasion, and that no State legislation should be sustained 
which defeats the avowed purposes of the Federal Constitution, 
or which assumes to regulate, or control subjects committed by 
that Constitution exclusively to the regulation of Congress. 

Before proceeding,^ however, to a consideration of the direct 
question whether the statute is in direct conflict with any pro- 
vision of the Constitution of the United States, it is necessary to 
have a clear apprehension of the subject and the nature of the tax 
imposed by it. It has repeatedly been held that the constitution- 
ality, or unconstitutionality of a State tax is to be determined, 
not by the form or agency through which it is to be collected, but 
by the subject upon which the burden is laid. This was decided 
in the cases of Bank of Commerce v. New York City,^ in The 
Bank Tax Case,^ Society for Savings v. Coite,^ and Provident 
Bank v. Massachusetts.* In all these cases it appeared that the 
bank was required by the statute to pay the tax, but the decisions 
turned upon the question, what was the subject of the tax, upon 
what did the burden really rest, not upon the question from whom 
the State exacted payment into its treasury. Hence, where it 
appeared that the ultimate burden rested upon the property of the 
bank invested in United States securities, it was held unconsti- 
tutional, but where it rested upon the franchise of the bank, it 
was sustained. 

Upon what, then, is the tax imposed by the act of August 25th, 
1864, to be considered as laid? Where does the substantial bur- 
den rest? Very plainly it was not intended to be, nor is it in fact, 
a tax upon the franchise of the carrying companies, or upon their 
property, or upon their business measured by the number of tons 
of freight carried. On the contrary, it is expressly laid upon the 
freight carried. The companies are required to pay to the State 
treasurer for the use of the Commonwealth, "on each two thousand 

1 2 Black, 620. 3 6 Id., 594. 

2 2 Wallace, 200. 4 ib,, 611. 



248 CASES ON CONSTITUTIONAL LAW. 

loounds of freight so carried," a tax at the specified rate. And 
this tax is not proportioned to the business done in transporta- 
tion. It is the same whether the freight be moved one mile or 
three hundred. If freight be put upon a road and carried at all, 
tax is to be paid upon it, the amount of the tax being determined 
by the character of the freight. And when it is observed that the 
act provides "where the same freight shall be carried over and 
upon different but continuous lines, said freight shall be charge- 
able with tax as if it had been carried upon one line, and the whole 
tax shall be paid by such one of said companies as the State 
treasurer may select and notify thereof," no room is left for doubt. 
The provision demonstrates that the tax has no reference to the 
business of the companies. In the case of connected lines thou- 
sands of tons may be carried over the line of one company without 
any liability of that company to pay the tax. The State treasurer 
is to decide which of several shall pay the whole. There is still 
another provision in the act which shows that the burden of the 
tax was not intended to be imposed upon the companies desig- 
nated by it, neither upon their franchises, their property, or 
their business. The provision is as follows: "Corporations whose 
lines of improvements are used by others for the transportation 
of freight, and whose only earnings arise from tolls charged for 
such use, are authorized to add the tax hereby imposed to said 
tolls, and to collect the same therewith." Evidently this con- 
templates a liability for the tax beyond that of the company re- 
quired to pay it. into the treasury, and it authorizes the burden 
to be laid upon the freight carried, in exemption of the corpora- 
tion owning the road^vay. It carries the tax over and beyond the 
carrier to the thing carried. Improvement companies, not them- 
selves authorized to act as carriers, but having only power to con- 
struct and maintain roadways, charging tolls for the use thereof, 
are generally limited by their charters in the rates of toll they are 
allowed to charge. Hence the right to increase the tolls to the 
extent of the tax was given them in order that the tax might come 
from the freight transported, and not from the treasury of the 
companies. It required no such grant to companies which not 
only own their roadway, but have the right to transport thereon. 
Though the tolls they may exact are limited, their charges for 
carriage are not. They can, therefore, add the tax to the charge 
for transportation without further authority.^ In view of these 

5 Vide Boyle v. The Reading ley Railroad Co.'s Appeal, 62 Id., 
Railroad Company, 54 Pennsyl- 218. 
vania State, 310; Cumberland Val- 



THE STATE FREIGHT TAX. 249 

provisions of the statute it is impossible to escape from the con- 
viction that the burden of the tax rests upon the freight trans- 
ported, or upon the consignor or consignee of the freight (im- 
posed because the freight is transported), and that the company- 
authorized to collect the tax and required to pay it into the State 
treasury is, in effect, only a tax-gatherer. The practical operation 
of the law has been well illustrated by another^ when commenting 
upon a statute of the State of Delaware very similar to the one 
now under consideration. He said, "The position of the carrier 
under this law is substantially that of one to whom public taxes 
are farmed out — who undertakes by contract to advance to the 
government a required revenue with power by suit or distress to 
collect a like amount out of those upon whom the tax is laid. The 
only imaginable difference is, that, in the case of taxes farmed 
out, the obligation to account to the government is voluntarily 
assumed by contract, and not imposed by law, as upon the carrier 
under this act; also, that different means are provided for raising 
the tax out of those ultimately chargeable with it." 

Considering it, then, as manifest that the tax demanded by the 
act is imposed, not upon the company, but upon the freight car- 
ried, and because carried, we proceed to inquire whether, so far 
as it affects commodities transported through the State, or from 
points without the State to points within it, or from points within 
the State to points without it, the act is a regulation of interstate 
commerce. Beyond all question the transportation of freight, or 
of the subjects of commerce, for the purpose of exchange or sale, 
is a constituent of commerce itself. This has never been doubted, 
and probably the transportation of articles of trade from one 
State to another was the prominent idea in the minds of the 
framers of the Constitution, when to Congress was committed the 
power to regulate commerce among the several States. A power 
to prevent embarrassing restrictions by any State was the thing 
desired. The power was given by the same words and in the 
same clause by which was conferred power to regulate commerce 
with foreign nations. It would be absurd to suppose that the 
transmission of the subjects of trade from the State to the buyer, 
or from the place of production to the market, was not contem- 
plated, for without that there could be no consummated trade 
either with foreign nations or among the States. In his work 
on the Constitution,'^ Judge Story asserts that the sense in which 

6 Chancellor Bates in Clarke v. 7 § 1057. 

Philadelphia, Wilmington, and. 
Baltimore Railroad Co. 



250 CASES ON CONSTITUTIONAL LAW. 

the word commerce is used in that instrument inchides not only 
traffic, but intercourse and navigation. And in the Passenger 
Cases,^ it was said: ''Commerce consists in selling the superfluity, 
in purchasing articles of necessity, as well productions as manu- 
factures, in buying from one nation and selling to another, or in 
transporting the merchandise from the seller to the buyer to gain 
the freight." Xor does it make any difference whether this inter- 
change of commodities is by land or by water. In either case 
the bringing of the goods from the seller to the buyer is com- 
merce. Among the States it must have been principally by land 
when the Constitution was adopted. 

Then, why is not a tax upon freight transported from State 
to State a regulation of interstate transportation, and, therefore, 
a regulation o^f commerce among the States? Is it not prescribing 
a rule for the transporter, by which he is to be controlled in 
bringing the subjects of commerce into the State, and in taking 
them out? The present case is the best possible illustra- 
tion. The legislature of Pennsylvania has in effect declared 
that every ton of freight taken up within the State and carried 
out, or taken up in other States and brought within her limits, 
shall pay a specified tax. The payment of that tax is a condition 
upon which is made dependent the prosecution of this branch of 
commerce. And as there is no limit to the rate of taxation she 
may impose, if she can tax at all, it is obvious the condition 
may be made so onerous that an interchange of commodities with 
other States would be rendered impossible. The same power that 
may impose a tax of two cents per ton upon coal carried out of 
the State, may impose one of five dollars. Such an imposition, 
whether large or small, is a restraint of the privilege or right 
to have the subjects of commerce pass freely from one State 
to another without being obstructed by the intervention of State 
lines. It would hardly be maintained, we think, that had the 
State established custom-houses on her borders, wherever a rail- 
road or canal comes to the State line, and demanded at these 
houses a duty for allowing merchandise to enter or to leave the 
State "upon one of those railroads or canals, such an imposition 
would not have been a regulation of commerce with her sister 
States. Yet it is difficult to see any substantial difference be- 
tween the supposed case and the one we have in hand. The 
goods of no citizen of Xew York, Xew Jersey, Ohio, or of any 
other State, may be placed upon a canal, railroad, or steamboat 

8 7 Howard, 416. 



THE STATE FREIGHT TAX. 351 

witlitn the State for transportation any distance, either into or 
out of the State, without being subjected to the burden. Nor 
can it make any difference that the legislative purpose was to 
raise money for the support of the State government, and not 
to regulate transportation. It is not the purpose of the law, 
but its effect, which we are now considering. Nor is it at all 
material that the tax is levied upon all freight, as well that 
which is wholly internal as that embarked in interstate trade. 
We are not at this moment inquiring further than whether tax- 
ing goods carried because they are carried is a regulation of car- 
riage. The State may tax its internal commerce, but if an act 
to tax interstate or foreign commerce is unconstitutional, it is not 
cured by including in its provisions subjects within the domain 
of the State. Nor is a rule prescribed for carriage of goods 
through, out of, or into a State any the less a regulation of trans- 
portation because the same rule may be applied to carriage which 
is wholly internal. Doubtless a State may regulate its internal 
commerce as it pleases. If a State chooses to exact conditions 
for allowing the passage or carriage of persons or freight through 
it into another State, the nature of the exaction is not changed 
by adding to it similar conditions for allowing transportation 
wholly within the State. 

We may notice here a position taken by the defendants in 
error, and stoutly defended in the argument, that the tax levied, 
instead of being a regulation of commerce, is compensation for 
the use of the works of internal improvement constructed under 
the authority of the State and l)y virtue of franchises granted 
by the State; in other words, that it is a toll for the use of the 
highways, a part of which, in right of her eminent domain, the 
State may order to be paid into her treasury. . , . 

All this, however, is abstract and apart from the case before 
us. That the act of 1864 was not intended to assert a claim for 
the use of the public works, or a claim for a part of the tolls, is 
too apparent to escape observation. The tax was imposed upon 
freight carried by steamboat companies, whether incorporated by 
the State or not, and whether exercising privileges granted by the 
State or not. It reaches freight passing up and down the Dela- 
ware and the Ohio rivers carried by companies who derive no 
rights from grants of Pennsylvania, who are exercising no part 
of her eminent domain; and, as we have noticed heretofore, the 
tax is not proportioned to services rendered, or to the use made 
of canals or railways. It is the same whether the transportation 
be long or short. It must therefore be considered an exaction, in 



253 CASES ON CONSTITUTIONAL LAW. 

right of alleged sovereignty, from freight transported, or the right 
of transportation ont of, or into, or through the State — a burden 
upon interstate intercourse. 

If, then, this is a tax upon freight carried between States, and 
a tax because of its transportation, and if such a tax is in effect 
a regulation of interstate commerce, the conclusion seems to be 
inevitable that it is in conflict with the Constitution of the United 
States. It is not necessary to the present case to go at large into 
the much-debated question whether the power given to Congress 
hj the Constitution to regulate commerce among the States is ex- 
clusive. In the earlier decisions of this court it was said to have 
been so entirely vested in Congress that no part of it can be 
exercised by a State. ^ It has, indeed, often been argued, and 
sometimes intimated, by the court that, so far as Congress has 
not legislated on the subject, the States may legislate respecting 
interstate commerce. Yet, if they can, why ma}' they not add 
regulations to commerce with foreign nations beyond those made 
by Congress, if not inconsistent with them, for the power over 
both foreign and interstate commerce is conferred upon the Fed- 
eral Legislature by the same words. And certainly it has never 
yet been decided b}^ this court that the power to regulate inter- 
state, as well as foreign commerce, is not exclusively in Congress. 
Cases that have sustained State laws^ alleged to be regulations of 
commerce among the States, have been such as related to bridges 
or dams across streams Avholly within a State, police or health 
laws, or subjects of a kindred nature, not strictly commercial reg- 
ulations. The subjects were such, as in Gilman v. Philadelphia,^ 
it was said "can be best regulated by rules and provisions suggest- 
ed by the varjdng circumstances of different localities, and limited 
in their operation to such localities respectively." However this 
may be, the rule has been asserted with great clearness, that when- 
ever the subjects over which a power to regulate commerce is as- 
serted are in their nature national, or admit of one uniform sys- 
tem or plan of regulation, they may justly be said to be of 
such a nature as to require exclusive legislation by Congress.^ 
Surely transportation of passengers or merchandise through a 
State, or from one State to another, is of this nature. It is of 
national importance that over that subject there should be but 
one regulating power, for if one State can directly tax persons 

1 Gibbons v. Ogden, 9 Wbeaton, s Cooley v. Port Wardens, 12 
1; Passenger Cases, 7 Howard, Howard, 299; Gilman v. Philadel- 
283. phia, supra; Crandall v. The State 

2 3 Wallace, 713. of Nevada, 6 Wallace, 42. 



THE STATE FREIGHT TAX, 253 

or property passing through it, or tax them indirectly by levying 
a tax upon their transportation, every other may, and thus com- 
mercial intercourse between States remote from each other may 
be destroyed. The produce of Western States may thus be effect- 
ually excluded from Eastern markets, for though it might bear 
the imposition of a single tax, it would be crushed under the load 
of many. It was to guard against the possibility of such com- 
mercial embarrassments, no doubt, that the power of regulating 
commerce among the States was conferred upon the Federal gov- 
ernment. 

In Almy v. The State of California,* it was held by this court 
that a law of the State imposing a tax upon bills of lading for 
gold or silver transported from that State to any port or place 
without the State, was substantially a tax upon the transporta- 
tion itself, and was therefore unconstitutional. True, the deci- 
sion was rested on the ground that it was a tax upon exports, and 
subsequently, in Woodruff v. Parham,'^ the court denied the cor- 
rectness of the reasons given for the decision; but they said at the 
same time the case was well decided for another reason, viz., that 
such a tax was a regulation of commerce — a tax imposed upon 
the transportation of goods from one State to another, over the 
high seas, in conflict with that freedom of transit of goods and 
persons between one State and another, which is within the rule 
laid down in Crandall v. Nevada," and with the authority of Con- 
gress to regulate commerce among the States. 

In Crandall v. The State of Nevada, where it appeared that 
the legislature of the State had enacted that there should "be 
levied and collected a capitation tax of one dollar upon every 
person leaving the State by any railroad, sitage-coach, or other 
vehicle engaged or employed in the business of transporting pas- 
sengers for hire," and required the proprietors, owners, and cor- 
porations so engaged to make monthly reports of the number of 
persons carried, and to pay the tax, it was ruled that though re- 
quired to be paid by the carriers, the tax was a tax upon passen- 
gers, for the privilege of being carried out of the State, and 
not a tax on the business of the carriers. For that reason it 
was held that the law imposing it was invalid, as in conflict with 
the Constitution of the United States. A majority of the court, 
it is true, declined to rest the decision upon the ground that the 
tax was a regulation of interstate commerce, and therefore be- 
yond the power of the State to impose, but all the judges agreed 

* 24 Howard, 169. 6 6 Id., 35. 

5 8 Wallace, 123. 



254 CASES ON CONSTITUTIONAL LAW. 

that the State law was unconstitutional and void. The Chief Jus- 
tice and Mr. Justice Clifford thought the judgment should have 
been placed exclusively on the ground that the act of the State 
legislature was inconsistent with the power conferred upon Con- 
gress to regulate commerce among the several States, and it does 
not appear that the other judges held that it was not thus in- 
consistent. In any view of the case, however, it decides that a 
Staite cannot tax persons for passing through, or out of it. Inter- 
state transportation of passengers is beyond the reach of a State 
legislature. And if State taxation of persons passing from one 
State to another, or a State tax upon interstate transportation 
of passengers is unconstitutional, a fortiori, if possible, is a State 
tax upon the carriage of merchandise from State to State in con- 
flict with the Federal Constitution. Merchandise is the sub- 
ject of commerce. Transportation is essential to commerce; and 
every burden laid upon it is pro tanto a restriction. Whatever, 
therefore, may be the true doctrine respecting the exclusiveness of 
the power vested in Congress to regulate commerce among the 
States, we regard it as established that no State can impose a tax 
upon freight transported from State to State, or upon the trans- 
porter because of such transportation. 

But while holding this, we recognize fully the power of each. 
State to tax at its discretion its own internal commerce, and the 
franchises, property, or business of its own corporations, so that 
interstate intercourse, trade, or commerce, be not embarrassed or 
restricted. That must remain free. 

The conclusion of the whole is that, in our opinion, the act of 
the legislature of Pennsylvania of August 25th, 1864, so far as 
it applies to articles carried through the State, or articles taken 
up in the State and carried out of it, or articles taken up without 
the State and brought into it, is unconstitutional and void. 

Judgment reversed, and tlie record is remitted for further pro- 
ceedings in accordance loitli tJiis opinion. 

Me. JrsTicE Swatxe (with whom concurred Me. Justice 
Davis), dissenting. 

I dissent from the opinion just read. In my judgment, the tax 
is imposed upon the business of those required to pay it. The 
tonnage is only the mode of ascertaining the extent of the busi- 
ness. That no discrimination is made between freight carried 
wholly within the State, and that brought into or carried through 
or out of it, sets this, as I think, in a clear light, and is con- 
clusive on the subject. 



PENSACOLA TEL. CO. V. WESTERN UNION TEL. CO. 355 

PENSACOLA TELEGEAPH COMPANY v. WESTEEN 
UNION TELEGEAPH COMPANY. 

96 U. S., 1. Decided 1877. 

Appeal from the Circuit of the United States for the Northern 
District of Florida. . . . [The Pensacola Telegraph Co. was 
incorporated in 1866 by the State of Florida, and granted the 
exclusive right to establish and maintain telegraph lines in cer- 
tain counties of Florida. Later, in 187-i, the legislature of Flor- 
ida empowered a railroad company to erect a telegraph line within 
the territory of the exclusive grant to the Pensacola Company. In 
1866, prior to the passage of the first of these acts, Congress had 
enacted that telegraph lines might be established "through and 
over any portion of the public domain of the United States, over 
and along any of the military and post roads of the United 
States which have been or may hereafter be declared such by 
act of Congress, and over, under, or across the navigable streams 
and waters of the United States." In June, 1867, the defend- 
ants had filed with the Postmasiter-General their acceptance of 
the terms of the act, as required by law. In 1874 the railroad 
company above mentioned authorized the defendant to erect a 
telegraph line upon its right of way, whereupon the plaintiff 
sought ito enjoin the construction and use of the line.] 

Mk. Chief Justice Waite delivered the opinion of the court. 

Since the case of Gibbons v. Ogden (9 Wheat., 1), it has never 
been doubted that commercial intercourse is an element of com- 
merce which comes within the regulating power of Congress. 
Post-offices and post-roads are established to facilitate the trans- 
mission of intelligence. Both commerce and the postal service 
are placed within the power of Congress, because, being national 
in their operation, they should be under the protecting care of 
the national government. 

The powers thus granted are not confined to the instrumental- 
ities of commerce, or the postal system known or in use when 
the Constitution was adopted, but they keep pace with the prog- 
ress of the country, and adapt themselves to the new develop- 
ments of times and circumstances. They extend from the horse 
with its rider to the stage-coach, from the sailing-vessel to the 
steam-boat, from the coach and the steam-boat to the railroad, 
and from the railroad to the telegraph, as these new agencies are 



256 CASES ON CONSTITUTIONAL LAW. 

successiyely brougiit into use to meet the demands of increasing 
population and wealth. They were intended for the government 
of the business to which they relate, at all times and -under all 
circumstances. As they were entrusted to the general govern- 
ment for the good of the nation, it is not only the right, hut the 
duty, of Congress to see to it that intercourse among the States 
and the transmission of intelligence are not obstructed or unnec- 
essarily encumbered by State legislation. 

The electric telegraph marks an epoch in the progress of time. 
In a little more than a quarter of a century it has changed the 
habits of business, and become one of the necessities of commerce. 
It is indispensable as a means of inter-communication, but es- 
pecially is it so in commercial transactions. The statistics of the 
business before the recent reduction in rates show that more 
than eighty per cent of all the messages sent by telegraph related 
to commerce. Goods are sold and money paid upon telegraphic 
orders. Contracts are made by telegraphic corespondence, car- 
goes secured, and the movement of ships directed. The tele- 
graphic announcement of the markets abroad regulates prices at 
home, and a prudent merchant rarely enters upon an important 
transaction without using the telegraph freely to secure informa- 
tion. 

It is not only important to the people, but to the govern- 
ment. By means of it the heads of departments in Washington 
are kept in close communication with all their various agencies 
at home and abroad, and can know at almost any hour, by in- 
quiry, what is transpiring anywhere that affects the interest they 
have in charge. Under such circumstances, it cannot for a mo- 
ment be doubted that this powerful agency of commerce and 
inter-communication comes within the controlling power of Con- 
gress, certainly as against hostile State legislation. In fact, from 
the beginning, it seems to have been assumed that Congress might 
aid in developing the system; for the first telegraph line of any 
considerable extent ever erected was built between Washington 
and Baltimore, only a little more than thirty years ago, with 
money appropriated by Congress for that purpose (5 Stat., 618); 
and large donations of land and money have since been made 
to aid in the construction of other lines (12 Stat., 489, 772; 13 
id., 365; 14 id., 292). It is not necessary now to inquire 
whether Congress may assume the telegi'aph as part of the postal 
service, and exclude all others from its use. The present case 
is satisfied, if we find that Congress has power, by appropriate 



PENSACOLA TEL. CO. v. WESTERN UNION TEL. CO. .257 

legislation, to prevent the States from placing obstructions in the 
way of its usefulness. 

The government of the United States, within the scope of its 
powers, operates upon every foot of territory under its jurisdic- 
tion. It legislates for the whole nation, and is not embarrassed 
by State lines. Its peculiar duty is to protect one part of the 
country from encroachments by another upon the national rights 
which belong to all. 

The State of Florida has attempted to confer upon a single 
corporation the exclusive right of transmitting intelligence by 
telegraph over a certain portion of its territory. This embraces 
the two westernmost counties of the State, and extends from 
Alabama to the Gulf. Ko telegraph line can cross the State from 
east to west, or from north to south, within these counties, except 
it passes over this territory. Within it is situated an important 
seaport, at which business centers, and with which those engaged 
in commercial pursuits have occasion more or less to communi- 
cate. The United States have there also the necessary machin- 
ery of the national government. They have a navy-yard, forts, 
custom-houses, courts, post-offices, and the appropriate officers 
for the enforcement of the laws. The legislation of Florida, if 
sustained, excludes all commercial intercourse by telegraph be- 
tween the citizens of the other States and those residing upon 
this territory, except by the employment of this corporation. The 
United States cannot communicate with their own officers by tele- 
graph except in the same way. The State, therefore, clearly has 
attempted to regulate commercial intercourse between its citizens 
and those of other States, and to control the transmission of all 
telegraphic correspondence within its own jurisdiction. 

It is unnecessary to decide how far this might have been done 
if Congress had not acted upon the same subject, for it has acted. 
The statute of July 24, 1866, in effect, amounts to a prohibi- 
tion of all State monopolies in this particular. It substantially 
declares, in the interest of commerce and the convenient trans- 
mission of intelligence from place to place by the government of 
the United States and its citizens, that the erection of telegraph 
lines shall, so far as State interference is concerned, be free to 
all who will submit to the conditions imposed by Congress, and 
that corporations organized under the laws of one State for 
constructing and operating telegraph lines shall not be excluded 
by another from prosecuting their business within its jurisdiction, 
if they accept the terms proposed by the national government for 
this national privilege. To this extent, certainlv, the statute is 
17 



258 CASES ON CONSTITUTIONAL LAW. 

a legitima»te reg-alation of commercial intercourse among the 
States, and is appropriate legislation to carry into execution the 
poTvers of Congress over the postal service. It gives no foreign 
corporation the right to enter upon private property without the 
consent of the owner and erect the necessary structures for its 
business; hut it does provide, that, whenever the consent of the 
owner is obtained, no State legislation shall prevent the occupa- 
tion of post-roads for telegraph purposes by such corporations a3 
are willing to avail themselves of its privileges. 

It is insisted, however, that the statute extends only to such 
mihtary and post roads as are upon the public domain; but this, 
we think, is not so. The language is, "Through and over any por- 
tion of the public domain of the United States, over and along any 
of the mihtary or post roads of the United States which have been 
or may hereafter be declared such by act of Congress, and over, 
under, or across the navigable streams or waters of the United 
States." There is nothing to indicate an intention of limiting 
the effect of the words employed, and they are, therefore, to be 
given their natural and ordinarv^ signification. Eead in this way, 
the grant evidently extends to the public domain, the military and 
post roads, and the navigable waters of the United States. These 
are all within the dominion of the national government to the 
extent of the national powers, and are, therefore, subject to legit- 
imate congressional regulation. Xo question arises as to the au- 
thority of Congress to provide for the appropriation of private 
property to the uses of the telegraph, for no such attempt has 
been made. The use of public property alone is gTanted. If pri- 
vate property is required, it must, so far as the present legisla- 
tion is concerned, be obtained by private arrangement with its 
owner. Xo compulsory proceedings are authorized. State sov- 
ereignty under the Constitution is not interfered with. Only na- 
tional privileges are granted. 

The State law in question, so far as it confers exclusive rights 
upon the Pensacola Company, is certainly in conflict with this 
legislation of Congress. To that extent it is, therefore, inopera- 
tive as against a corporation of another State entitled to the priv- 
ileges of the act of Congress. Such being the case, the charter of 
the Pensacola Company does not exclude the Western Union Com- 
pany from the occupancy of the right of way of the Pensacola and 
Louisville Eailroad Company under the arrangement made for 
that purpose. . . . 

Upon principles of comity, the corporations of one State are 
permitted to do business in another, unless it confhcts with the 



GLOUCESTER FERRY CO. v. PENNSYLVANIA. 259 

law, or unjustly interferes with the rights of the citizens of the 
State into which they come. Under such circumstances, no cit- 
izen of a State can enjoin a foreign corporation from pursuing 
its business. Until the State acts in its sovereign capacity, indi- 
vidual citizens cannot complain. The State must determine for 
itself when the public good requires that its implied assent to the 
admission shall be withdrawn. Here, so far from withdrawing 
its assent, the State, by its legislation of 1874, in effect, invited 
foreign telegraph corporations to come in. Whether that legisla- 
tion, in the absence of congressional action, would have been suffi- 
cient to authorize a foreign corporation to construct and operate 
a line within the two counties named, we need not decide; but 
we are clearly of the opinion, that, with such action and a right 
of way secured by private arrangement with the owner of the 
land, this defendant corporation cannot be excluded by the pres- 
ent complainant. 

Decree affirmed. 

Mr. Justice Field and Mr. Justice Hunt dissented. . , . 



GLOUCESTER FERRY COMPANY v. PENNSYLVANIx\. 
114 U. S., 196. Decided 1885. 

[The Gloucester Ferry Company, a New Jersey corporation, 
established a ferry in 1865 between Gloucester, New Jersey, and 
Philadelphia. At each place it had a dock; the one at Glouces- 
ter it owns, the one at Philadelphia it leases. Its entire busi- 
ness consists in ferrying passengers and freight across the river. 
It has never had any property, real or personal, in Pennsylvania, 
other than the lease of the dock mentioned. Its boats are reg- 
istered at the port of Camden, New Jersey, and remain in Penn- 
sylvania only long enough to discharge and receive passengers 
and freight. On June, 7, 1879, a statute was passed in Penn- 
sylvania imposing taxes, with certain exceptions, on all corpora- 
tions, domestic or foreign, doing business or employing capital in 
Pennsylvania. In July, 1880, the State of Pennsylvania stated 
an account against the company showing the sum of $2,593.96 to 
be due the Commonwealth for taxes from 1865 to 1879. An 
appeal was taken to the Court of Common Pleas of Philadelphia.] 

The Court of Common Pleas held that the taxes could not be 



260 CASES ON CONSTITUTIONAL LAW. 

lawfully levied, for there was no other business carried on by the 
company in Pennsylvania except the landing and receiving of 
passengers and freight, which is a part of the commerce of the 
country, and protected by the Constitution from the imposition 
of burdens by State legislation. It, therefore, gave judgment in 
favor of the conipan}'. The case being carried on a writ of error 
to the Supreme Court of the State, the judgment was reversed 
and judgment ordered in favor of the Commonwealth for the 
amount mentioned. To review this latter judgment, the case 
was brought here. . . . 

j\Ie. Justice Field delivered the opinion of the court. He 
stated the facts as above recited, and continued: — 

The Supreme Court of the State, in giving its decision in this 
case, stated that the single question presented for consideration 
was whether the company did business within the State of Penn- 
sylvania during the period for Avhich the taxes were imposed; and 
it held that it did do business there because it landed and received 
passengers and freight at its wharf in Philadel])hia, observing that 
its whole income was derived from the transportation of freight 
and passengers from its wharf at Gloucester to its wharf at Phila- 
delphia, and from its wharf at Philadelphia to its wharf at Glouces- 
ter; that at each of these points its main business, namely, the 
receipt and landing of freight and passengers, was transacted; 
that for such business it was dependent as much upon the one 
place as upon the other; that, as it could hold the wharf at 
Gloucester, which it owned in fee, only by purchase by virtue of 
the statutory will of the Legislature of Xew Jersey, so it could 
hold by lease the one in Philadelphia only by the implied consent 
of the Legislature of the Commonwealth; and that, therefore, it 
''Vas dependent equally, not only for its business, but its power 
to do that business, unon both States, and might, therefore, be 
taxed by both." 98 Penn. ^t., 105, 116. 

As to the firsit reason thus expressed, it may be answered that 
the business of landing and receiving passengers and freight at 
the wharf in Philadelphia is a necessary incident to, indeed is a 
part of, their transportation across the Delaware Eiver from Xew 
Jersey. "Without it that transportation would be impossible. 
Transportation implies the taking up of persons or property at 
some point and putting them down at another. A tax, therefore, 
upon such receiving and landing of passengers and freight is a 
tax upon their transportation; that is, upon the commerce be- 
tween the two States involved in such transportation. 



GLOUCESTER PERRY CO. v. PENNSYLVANIA. 261 

It matters not that the transportation is made in ferry-boats, 
which pass between the States every hour of the day. The means 
of transportation of persons and freight between the States does 
not change the character of the business as one of commerce, nor 
does the time within which the distance between the States may 
be traversed. Commerce among the States consists of intercourse 
and traffic between their citizens, and includes the transportation 
of persons and property, and the navigation of public waters for 
that purpose, as well as the purchase, sale, and exchange of com- 
modities. The power to regulate that commerce, as well as com- 
merce with foreign nations, vested in Congress, is the power to 
prescribe the rules by which it shall be governed, that is, the con- 
ditions upon which it shall be conducted; to determine when it 
shall be free and when subject to duties or other exactions. The 
power also embraces within its control all the instrumentalities 
by which that commerce may be carried on, and the means by 
which it may be aided and encouraged. The subjects, therefore, 
upon which the power may be exerted are of infinite variety. 
While with reference to some of them, which are local and lim- 
ited in their nature or sphere of operation, the States may pre- 
scribe regulations until Congress intervenes and assumes control 
of them; yet, when they are national in their character, and re- 
quire uniformity of regulation affecting alike all the States, the 
power of Congress is exclusive. Necessarily that power alone can 
prescribe regulations which are to govern the whole country. 
And it needs no argument to show that the commerce with for- 
eign nations and between the States, which consists in the trans- 
portation of persons and property between them, is a subject 
of national character, and requires uniformity of regulation. Con- 
gress alone, therefore, can deal with such transportation; its non- 
action is a declaration that it shall remain free from burdens im- 
posed by State legislation. Otherwise there would be no protec- 
tion against conflicting regulations of different States, each legis- 
lating in favor of its own citizens and products, and against those 
of other States. It was from apprehension of sucli conflicting 
and discriminating State legislation, and to secure uniformity of 
regulation, that the power to regulate commerce with foreign 
nations and among the States was vested in Congress. 

Nor does it make any difference whether such commerce is car- 
ried on by individuffls or by corporations. Welton v. Missouri, 
91 IT. S., 275; Mobile v. Kimball, 102 U. S., 691. As was said 
in Paul V. Virginia, 8 Wall., 168, at the time of the formation 
of the Constitution, a large part of the commerce of the world 



263 CASES ON CONSTITUTIONAL LAW. 

was carried on by corjDorations; and the East India Company, tlie 
Hudson Bay Compan}-, tlie Hamburgh Company, the Levant Com- 
pany, and the Virginia Company were mentioned as among the 
corporations which, from the extent of their operations, had be- 
come celebrated througliout tlie commercial world. The grant of 
power is general in its terms, making no reference to the agencies 
by which commerce may be carried on. It includes commerce 
by whomsoever conducted, whether by individuals or by cor- 
porations. At the present day, nearly all enterprises of a commer- 
cial character, requiring for their successful management large 
expenditures of money, are conducted by corporations. The usual 
means of transportation on the public waters, where expedition 
is desired, are vessels propelled by steam; and the ownership of 
a line of such vessels generally requires an expenditure exceeding 
the resources of single individuals. Except in rare instances, it is 
only by associated capital furnished by persons united in cor- 
porations, that the requisite means are provided for such expendi- 
tures. 

As to the second reason given for the decision below, that the 
company could not lease its wharf in Philadelphia except by the 
implied consent of the Legislature of the Commonwealth, and 
thus is dependent upon the Commonwealth to do its business, and 
therefore can be taxed there, it may be answered that no foreign 
or interstate commerce can be carried on with the citizens of 
a State without the use of a wharf, or other place within its limits 
on which passengers and freight can be landed and received, and 
the existence of power in a State to impose a tax upon the cap- 
ital of all corporations engaged in foreign or interstate commerce 
for the use of such places would be inconsistent with and en- 
tirely subversive of the power vested in Congress over such com- 
merce. Xearly all the lines of steamships and of sailing vessels 
between the United States and England, France, Germany, and 
other countries of Europe, and between the United States and 
South America, are owned by corporations; and if by reason of 
landing or receiving passengers and freight at wharves, or other 
places in a State, they can be taxed by the State on their capital 
stock on the ground that they are thereby doing business within 
her limits, the taxes which may be imposed may embarrass, im- 
pede, and even destroy such commerce with the citizens of the 
State. If such a tax can be levied at all, its amount will rest 
in the discretion of the State. It is idle to say that the interests 
of the State would prevent oppressive taxation. Those engaged 
in foreign and interstate commerce are not bound to trust to 



GLOUCESTER FERRY CO. v. PENNSYLVANIA. 363 

its moderation in tliat respect; tliey require security. And they 
may rely on the power of Congress to prevent any interference by 
the State until the act of commerce, the transportation of passen- 
gers and freight, is completed. The only interference of the State 
with the landing and receiving of passengers and freight, which is 
permissible, is confined to such measures as will prevent con- 
fusion among the vessels, and collision between them, insure 'their 
safety and convenience, and facilitate the discharge or receipt 
of their passengers and freight, which fall under the general 
head of port regulations, of which we shall presently speak. 

It is true that the property of corporations engaged in for- 
eign or interstate commerce, as well as the property of corpora- 
tions engaged in other business, is subject to State taxation, pro- 
vided always it be within the jurisdiction of the State. As 
said by Chief Justice Marshall in McCulloch v. Maryland, 4 
Wheat., 316, 429, "all subjects over which the sovereign power of 
a State extends are objects of taxation; but those over which it 
does not extend are, upon the soundest principles, exempt from 
taxation. This proposition may almost be pronounced self-evi- 
dent." . . . [Here follows a discussion of Hays v. Pacific Mail 
Steamship Co., 17 Howard, 596; Morgan v. Parham, 16 Wallace, 
471; St. Louis v. The Ferry Co., 11 Wallace, 433, and Railroad 
Co. V. Pennsylvania, 15 Wallace, 300.] 

In the recent ease of Commonwealth of Pennsylvania v. Stand- 
ard Oil Co., 101 Penn. St., 119, the liability of foreign corpora- 
tions doing business within that State is elaborately considered by 
its Supreme Court. The corporation was doing business there, and 
it was contended on the part of the Commonwealth that the tax 
should be imposed upon all of the capital stock of the com- 
pany; while on the other side it was urged that only so much of 
the stock was intended, by the statute, to be taxed as was repre- 
sented by property of the company invested and used in the 
State. In giving its decision the court said that it had been 
repeatedly decided and was settled law that a tax upon the cap- 
ital stock of a company is a tax upon its property and assets -(cit- 
ing to that effect a large number of decisions); that it was un- 
doubtedly competent for the legislature to lay a franchise or li- 
cense tax upon foreign corporations for the privilege of doing 
business within the State, but that the tax in that case was in 
no sense a license tax; that the State had never granted a license 
to the Standard Oil Company to do business there, but merely 
taxed its property, that is, its capital stock, to the extent that it 
brought such property within its borders in the transaction of its 



264 CASES ON CONSTITUTIONAL LAW. 

business; that the position of tlie Commonwealth, that a for- 
eign corporation entering the State to do business brought its 
entire capital, was ingenious but unsound; that it was a funda- 
mental principle that, in order to be taxed, the person must have 
a domicil in the State, and the thing must have a situs therein; 
that persons and property in transitu could not be taxed; that the 
domicil of a corporation was in the State of its origin and it 
could not emigrate to another sovereignty; that the domicil of the 
Standard Oil Company was in Ohio, and when it sent its agents 
into the State to transact business it no more entered the State 
in point of fact than any other foreign corporation, firm, or in- 
dividual who sent an agent there to open an office or branch 
house, or brought its capital there constructively; that it would 
be as reasonable to assume that a business firm in Ohio brought 
its entire capital there because it sent its agent to establish a 
branch of its business, as to hold that the Standard Oil Com- 
pany, by employing certain persons in the State to transact a 
portion of its business, thereby brought all its property or cap- 
ital stock within the Jurisdiction of the State; that there was 
neither reason nor authority for such a" proposition; that the 
company was taxable only to the extent that it brought its prop- 
erty within the State; and that its capital stock, as mentioned 
in the act of the legislature, must be construed to mean so much 
of the capital stock as was measured by the property actually 
brought within the State by the company in the transaction of 
its business. The justice who delivered the opinion of the court 
added, speaking for himself, that he conceded the power of the 
Commonwealth to exclude foreign corporations altogether from 
her borders, or to impose a license tax so heavy as to amount 
to the same thing; but he denied, great and searching as' her 
taxing power is, that she could tax either persons or property 
not within her jurisdiction. "A foreign corporation," he said, 
"'has no domicil here, and can have none; hence it cannot be 
said to draw to itself the constructive possession of its property 
located elsewhere. There are a large number of foreign insurance 
companies doing business here under license from the State. Some 
of them have a very large capital. It is usually invested at the 
domicil of the company. If the position of the Commonwealth 
is correct, she can tax the entire property of the Eoyal Insurance 
Company, although the same is located almost wholly in Eng- 
land, or the assets of the Xew York Mutual, located in Xew 
York." 

Under this decision there is no property held by the Gloucester 



GLOUCESTER FERRY CO. v. PENNSYLVANIA. 265 

Ferry Company, which can be the subject of taxation in Pennsyl- 
vania, except the lease of the wharf in that State. Whether that 
wharf is taxed to the owner or to the lessee it matters not, for no 
question here is involved in such taxation. It is admitted that it 
could be taxed by the State according to its appraised value. The 
feiTy-boats of the company are registered at the port of Camden 
in New Jersey, and according to the decisions in Hays v. The 
Pacific Mail Steamship Co., and in Morgan v. Parham, they can 
be taxed only at their home port. According to the decision 
in the Standard Oil Company case, and by the general law on 
the subject, the company has no domicil in Pennsylvania, and 
its capital stock representing its property is held outside of its 
limits. It is solely, therefore, for the business of the company in 
landing and receiving passengers at the wharf in Philadelphia that 
the tax is laid, and that business, as already said, is an essential 
part of the transportation between the States of New Jersey and 
Pennsylvania, which is itself interstate commerce. While it is 
conceded that the property in a State belonging to a foreign cor- 
poration engaged in foreign or interstate commerce may be taxed 
equally with like property of a domestic corporation engaged in 
that business, we are clear that a tax or other burden imposed 
on the property of either corporation because it is used to carry 
on that commerce, or upon the transportation of persons or prop- 
erty, or for the navigation of the public waters over which the 
transportation is made, is invalid and void as an interference 
with, and an obstruction of, the power of Congress in the regula- 
tion of such commerce. This proposition is supported by many 
adjudications. . . . 

[Here follow statements of Gibbons v. Ogden, 9 Wheaton, 1; 
Steamship Co. v. Port Wardens, 6 Wallace, 31; Reading Railroad 
Co. V. Pennsylvania, 15 Wallace, 232; and Henderson v. The 
Mayor of New York, 92 U. S., 259.] 

These cases would seem to be decisive of the character of the 
business which is the subject of taxation in the present case. Re- 
ceiving and landing passengers and freight is incident to their 
transportation. Without both there could be no such thing as 
their transportation across the river Delaware. The transporta- 
tion, as to passengers, is not completed until, as said in the Hen- 
derson case, they are disembarked at the pier of the city to which 
they are carried; and, as to freight, until it is landed upon such 
pier. And all restraints by exactions m the form of taxes upon 
such transportation, or upon acts necessary to its completion, are 



266 CASES ON CONSTITUTIONAL LAW. 

SO many invasions of the exclusive power of Congress to regu- 
late that portion of commerce between the States. 

The cases where a tax or toll npon vessels is allowed to meet 
the expenses incurred in improving the navigation of waters tra- 
versed by them, as by the removal of rocks, the construction of 
dams and locks to increase the depth of water and thus extend 
the line of navigation, or the construction of canals around falls, 
rest upon a different principle. The tax in such cases is con- 
sidered merely as compensation for the additional facilities thus 
provided in the navigation of the waters. Kellogg v. Union Co., 
12 Conn., 7; Thames Bank v. Lovell, 18 Conn., 500; McEeynolds 
V. Smallhouse, 8 Bush, 447. 

Upon similar grounds, what are termed harbor dues or port 
charges, exacted by the State from vessels in its harbors, or from 
their owners, for other than sanitary purposes, are sustained. We 
say for other than sanitary purposes; for the power to prescribe 
regulations to protect the health of the community, and prevent 
the spread of disease, is incident to all local municipal author- 
ity, however much such regulations may interfere with the move- 
ments of commerce. But, independently of such measures, the 
State may prescribe regulations for the government of vessels 
whilst in its harbors; it may provide for their anchorage or moor- 
ing, so as to prevent confusion and collision; it may designate the 
wharves at which they shall discharge and receive their passengers 
and cargoes and require their removal from the wharves when not 
thus engaged, so as to make room for other vessels. It may appoint 
officers to see that the regulations are carried out, and impose 
penalties for refusing to obey the directions of such officers; and 
it may impose a tax upon vessels sufficient to meet the expenses 
attendant upon the execution of the regulations. The author- 
ity for establishing regulations of this character is found in the 
right and duty of the supreme power of the State to provide for 
the safety, convenient use, and undisturbed enjoyment of prop- 
erty within its limits; and charges incurred in enforcing the 
regulations may properly be considered as compensation for the 
facilities thus furnished to the vessels. Vanderbilt v. Adams, 
7 Cowen, 349, 351. Should such regulations interfere with the 
exercise of the commercial power of Congress, they may at any 
time be superseded by its action. It was not intended, however, 
by the grant to Congress to supersede or interfere with the power 
of the States to establish police regulations for the better protec- 
tion and enjoyment of property. Sometimes, indeed, as remarked 
by Mr. Cooley, the line of distinction between what constitutes an 



GLOUCESTER FERRY CO. V. PENNSYLVANIA. 367 

interference with commerce and what is a legitimate police reg- 
ulation is exceedingly dim and shadowy, and he adds: "It is 
not douhted that Congress has the power to go beyond the gen- 
eral regulations of commerce which it is accustomed to estab- 
lish, and to descend to the most minute directions if it shall be 
deemed advisal)Ie, and that to whatever extent ground shall be 
covered by those directions, the exercise of State power is ex- 
cluded. Congress may establish police regulations as well as the 
States, confining their operations to the subjects over which it is 
given control by the Constitution; but as the general police power 
can better be exercised under the provisions of the local author- 
ity, and mischiefs are not likely to spring therefrom so long as 
the power to arrest collision resides in the National Congress, the 
regulations which are made by Congress do not often exclude the 
establishment of others by the State covering very many particu- 
lars." Cooley's Cons-ititutional Limitations, 732. 

The power of the States to regulate matters of internal police 
includes the establishment of ferries as well as the construction 
of roads and bridges. In Gibbons v. Ogden, Chief Justice Mar- 
shall said that laws respecting ferries, as well as inspection laws, 
quarantine laws, health laws, and laws regulating the internal 
commerce of the States, are component parts of an immense mass 
of legislation, embracing everything within the limits of a State 
not surrendered to the general government; but in this lan- 
guage he plainly refers to feri'ies entirely within the State, and 
not to ferries transporting passengers and freight between the 
States and a foreign country; for the power vested in Congress, 
he says, comprehends every species of commercial intercourse be- 
tween the United States and foreign countries. No sort of trade, 
he adds, can be carried on between this country and another to 
which the power does not extend; and what is true of foreign 
commerce is also true of commerce between States over the waters 
separating them. Ferries between one of the States and a foreign 
country cannot be deemed, therefore, beyond the control of Con- 
gress under the commercial power. They are necessarily governed 
by its legislation on the importation and exportation of merchan- 
dise and the immigration of foreigners, that is, are subject to its 
regulation in that respect; and if they are not beyond the control 
of the commercial power of Congress, neither are ferries over 
waters separating States. Congress has passed various laws re- 
specting such international and interstate ferries, the validity of 
which is not open to question. It has provided that vessels used 
•exclusively as ferry-boats, carrying passengers, baggage, and mer- 



268 CASES ON CONSTITUTIONAL LAW. 

chandise, shall not be required to enter and clear, nor shall their 
masters be required to present manifests, or to pay entrance or 
clearance fees, or fees for receiving or certifying manifests; '^Dut 
they shall, upon arrival in the United States, be required to re- 
port such baggage and merchandise to the proper officer of the 
customs, according to law," Eev. Stat., § 2792; that the lights 
for ferry-boats shall be regulated by such rules as the Board of 
Supervising Inspectors of Steam Vessels shall prescribe, Eev. 
Stat., § 4233, Eule 7; that any foreign railroad company or cor- 
poration, whose road enters the United States by means of a ferry 
or tug-boat, may own such boat, and that it shall be subject 
to no other or different restrictions or regulations in such employ- 
ment than if owned by a citizen of the United States, Eev. Stat., 
§ 4370; that the hull and boilers of every ferry-boat propelled 
by steam shall be inspected, and provisions of law for the better 
security of life, which may be applicable to them, shall, by reg- 
ulations of the supervising inspectors, be required to be com- 
plied with before a certificate of inspection be granted; and that 
they shall not be navigated without a licensed engineer and a 
licensed pilot, Eev. Stat., § 4426. 

It is true that, from the earliest period in the history of the 
government, the States have authorized and regulated ferries, not 
only over waters entirely within their limits, but over waters 
separating them; and it may be conceded that in many respects, 
the States can more advantageously manage such inter-State fer- 
ries than the general government; and that the privilege of keep- 
ing a ferry, with a right to take toll for passengers and freight, 
is a franchise grantable by the State, to be exercised within 
such limits and under such regulations as may be required for 
the safety, comfort, and convenience of the public. Still the 
fact remains that such a ferry is a means, and a necessary means, 
of commercial intercourse between the States bordering on their 
dividing waters, and it must, therefore, be conducted without the 
imposition by the States of taxes or other burderfs upon the com- 
merce between them. Freedom from such impositions does not, 
of course, imply exemption from reasonable charges, as com- 
pensation for the carriage of persons, in the way of tolls or fares, 
or frbm the ordinary taxation to which other property is subjected, 
any more than like freedom of transportation on land implies 
such exemption. Eeasonable charges for the use of property, 
either on water or land, are not an interference with the freedom 
of transportation between the States secured under the commer- 
cial power of Congress. Packet Co. v. Keokuk, 95 U. S., 80; 



LEISY V. HARDIN. 369 

Packet Co. v. St. Louis, 100 U. S., 423; Vicksbiirg v. Tobin, 100 
U. S., 430; Packet Co. v. Catlettsbiirg, 105 U. S., 559; Transporta- 
tion Co. V. Parkersburg, 107 U. S., 691. That freedom implies 
exemption from charges other than such as are imposed by way 
of compensation for the use of the property employed, or for 
facilities afforded for its use, or as ordinary taxes upon the value 
of the property. How conflicting legislation of the two States on 
the subject of ferries on waters dividing them is to be met and 
treated is not a question before us for consideration. Pennsylvania 
has never attempted to exercise its power of establishing and reg- 
ulating ferries across the Delaware Eiver. Any one, so far as 
her laws, are concerned, is free, as we are informed, to establish 
such ferries as he may choose. No license fee is exacted from 
ferry-keepers. She merely exercises the right to designate the 
places of landing, as she does the places of landing for all vessels 
engaged in commerce. The question, therefore, respecting the tax 
in the present case is not complicated by any action of that State 
concerning ferries. However great her |)ower, no legislation on 
her part can imnose a tax on that portion of inter-State commerce 
which is involved in the transportation of persons and freight, 
whatever be the instrumentality by which it is carried on. 

It follows that upon the case stated the tax upon the ferry com- 
pany was illegal and void. 

The judgment of the Sujireme Court of the State of Pcnnsyl- 
vania must, therefore, he reversed and the cause remanded for 
further proceedings in conformity loith this opinion. 



LEISY V. HARDIN. 

135 U. S., 100. Decided 1890. 

[Error to the Supreme Court of Iowa. The plaintiffs, who 
were brewers doing business at Peoria, Illinois, had shipped beer 
in sealed packages to Keokuk, Iowa, where it was offered for sale 
in the original packages. A certain quantity of the beer was 
seized by Hardin, the city marshal of Keokuk, under color of 
authority of the statutes of Iowa which forbade the manufacture 
or sale of intoxicating liquors, or keeping them with intent to 
sell, except for medicinal, chemical, pharmaceutical and sacra- 
mental purposes as allowed in the act. The plaintiffs brought 



270 CASES ON CONSTITUTIONAL LAW. 

replevin against Hardin to recover the beer seized, and the local 
court gave judgment for the plaintiffs on the ground that the 
State enactment was invalid. This judgment was reversed by 
the Supreme Court of Iowa.] 

Mr. Chief Justice Fullee, after stating the case, delivered 
the opinion of the court. 

The power vested in Congress "to regulate commerce with for- 
eign nations, and among the several States, and with the Indian 
tribes," is the power to prescribe the rule by which that commerce 
is to be governed, and is a power complete in itself, acknowledg- 
ing no limitations other than those prescribed in the Constitution. 
It is co-extensive with the subject on which it acts and cannot be 
stopped at the external boundary of a State, but must enter its in- 
terior and must be capable of authorizing the disposition of those 
articles which it introduces, so that they may become mingled 
with the common mass of property within the territory entered. 
Gibbons v. Ogden, 9 Wheat., 1; Brown v. Maryland, 12 Wheat., 
419. 

And while, by virtue of its jurisdiction over persons and prop- 
erty within its limits, a State may provide for the security of the 
lives, limbs, health and comforts of persons, and the protection 
of property so situated, yet a subject-matter which has been con- 
fided exclusively to Congress by the Constitution is not within the 
jurisdiction of the police power of the State, unless placed there 
by congressional action. Henderson v. Mayor of New York, 92 
U. S., 259; Eailroad Co. v. Husen, 95 IJ. S., 465; Walling v. Mich- 
igan, 116 U. S., 466; Eobbins v. Shelby Taxing District, 120 U. S., 
489. The power to regulate commerce among the States is a 
unit, but if particular subjects within its operation do not require 
the application of a general or uniform system, the States may 
legislate in regard to them with a view to local needs and cir- 
cumstances, until Congress otherwise directs; but the power thus 
exercised by the States is not identical in its extent with the power 
to regulate commerce between the States. The power to pass laws 
in respect to internal commerce, inspection laws, quarantine laws, 
health laws, and laws in relation to bridges, ferries, and highways, 
belongs to the class of powers pertaining to locality, essential to 
local intercommunication, to the progress and development of local 
prosperity, and to the protection, the safety, and welfare of society, 
originally necessarily belonging to, and upon the adoption of the 
Constitution reserved by, the States, except so far as falling 
within the scope of a power confided to the general government. 



LEISY V. HARDIN. 371 

WTiere the subject-matter requires a uniform system between the 
States, the power controlling it is vested exclusively in Congress, 
and cannot be encroached upon by the States; but where, in 
relation to the subject matter, different rules may be suitable for 
different localities, the States may exercise powers which, though 
they may be said to partake of the nature of the power granted 
to the general government, are strictly not such, but are simply 
local powers, which have full operation until or unless circum- 
scribed by the action of Congress in effectuation of the general 
power. Cooley v. Port Wardens of Philadelphia, 12 How., 299. 

It was stated in the 32d number of the Federalist that the 
States might exercise concurrent and independent power in all 
cases but three: First, where the power was lodged exclusi\iely 
in the federal constitution; second, where it was given to the 
United States and prohibited to the States; third, where, from 
the nature and subjects of the power, it must be necessarily ex- 
ercised by the national government exclusively. But it is easy to 
see that Congress may assert an authority under one of the granted 
powers, which would exclude the exercise by the States upon 
the same subject of a different but similar power, between which 
and that possessed by the general government no inherent repug- 
nancy existed. 

Whenever, however, a particular power of the general govern- 
ment is one which must necessarily be exe;'cised by it, and Con- 
gress remains silent, this is not only not a concession that the pow- 
ers reserved by the States may be exerted as if the specific power 
had not been elsewhere reposed, but, on the contrary, the only 
legitimate conclusion is that the general government intended that 
power should not be atBrmatively exercised, and the action of the 
States cannot be permitted to effect that which would be incom- 
patible with such intention. Hence, inasmuch as interstate com- 
merce, consisting in the transportation, purchase, sale, and ex- 
change of commodities, is national in its character, and must be 
governed by a uniform system, so long as Congress does not pass 
any law to regulate it, or allowing the States so to do, it thereby 
indicates its will that such commerce shall be free and untram- 
melled. County of Mobile v. Kimball, 102 U. S., 691; Brown v. 
Houston, 114 U. S., 622, 631; Wabash, St. Louis, &c., Eailway v. 
Illinois, 118 U. S., 557; Eobbins v. Shelby Taxing District, 120 
IT. S., 489, 493. 

That ardent spirits, distilled liquors, ale and beer, are subjects 
of exchange, barter and traffic, like any other commodity, in which 
a right of traffic exists, and are so recognized by the usages of the 



272 CASES ON CONSTITUTIONAL LAW. 

commercial world, the laws of Congress and the decisions of courts, 
is not denied. Being thus articles of commerce, can a State, in 
the ahsence of legislation on the part of Congress, prohibit their 
importation from abroad or from a sister State? or when imported 
prohibit their sale by the importer? If the importation cannot 
be prohibited without the consent of Congress, when does property 
imported from abroad, or from a sister State, so become part of 
the common mass of property within a State as to be subject to its 
unimpeded control? 

In Brown v. Maryland (supra) the act of the state legislature 
drawn in question was held invalid as repugnant to the prohibi- 
tion of the Constitution upon the States to lay any impost or 
duty upon imports or exports, and to the clause granting the 
power to regulate commerce; and it was laid down by the great 
magistrate who presided over this court for more than a third of 
a century, that the point of time when the prohibition ceases 
and the power of the State to tax commences, is not the instant 
when the article enters the country, but when the importer has 
so acted upon it that it has become incorporated and mixed up 
with the mass of property in the country, which happens when 
the original package is no longer such in his hands; that the dis- 
tinction is obvious between a tax which intercepts the import as an 
import on its way to become incorporated with the general mass 
of property, and a tax which finds the article already incorporated 
with that mass by the act of the importer; that as to the power 
to regulate commerce, none of the evils which proceeded from 
the feebleness of the federal government contributed more to the 
great revolution which introduced the present system, than the 
deep and general conviction that commerce ought to be regulated 
by Congress; that the grant should be as extensive as the mischief, 
and should comprehend all foreign commerce and all commerce 
among the States; that that power was complete in itself, acknowl- 
edged no limitations other than those prescribed by the Consti- 
tution, was co-extensive with the subject on which it acts and not 
to be stopped at the external boundary of a State, but must be 
capable of entering its interior; that the right to sell any article 
imported was an inseparable incident to the right to import it, 
and that the principles expounded in the case applied equally 
to importations from a sister State. Manifestly this must be so, 
for the same public policy applied to commerce among the States 
as to foreign commerce, and not a reason could be assigned for 
confiding the power over the one which did not conduce to estab- 
lish the propriety of confiding the power over the other. Story, 



LEISY V. HARDIN. 273 

Constitution, § 1066. And although the precise question before 
us was not ruled in Gibbons v. Ogden and Brown v. Maryland, 
yet we think it was virtually involved and answered, and that 
this is demonstrated, among other cases, in Bowman v. Chicago & 
Northwestern Eailway Co., 135 U. S., 465. In the latter case, 
section 1553 of the Code of the State of Iowa as amended by c. 
143 of the acts of the twentieth General Assembly in 1886, forbid- 
ding common caiTiers to bring intoxicating liquors into the State 
from any other State or Territory, without first being furnished 
with a certificate as prescribed, was declared invalid, because essen- 
tially a regulation of commerce among the States, and not sanc- 
tioned by the authority, express or implied, of Congress. The 
opinion of the court, delivered by Mr. Justice Matthews, the con- 
curring opinion of Mr. Justice Field, and the dissenting opinion 
by Mr. Justice Harlan, on behalf of Mr. Chief Justice Waite, Mr. 
Justice Gray, and himself, discussed the question involved in all 
its phases; and while the determination of whether the right of 
transportation of an article of commerce from one State to an- 
other includes by necessary implication the right of the con- 
signee to sell it in unbroken packages at the place where the 
transportation terminates was in terms reserved, yet the argu- 
ment of the majority conducts irresistibly to that conclusion, and 
we think we cannot do better than repeat the grounds upon which 
the decision was made to rest. It is there shown that the trans- 
portation of freight or of the subjects of commerce, for the pur- 
pose of exchange or sale, is beyond all question a constituent of 
commerce itself; that this was the prominent idea in the minds 
of the framers of the Constitution, when to Congress was com- 
mitted the power to regulate commerce among the several States; 
that the power to prevent embarrassing restrictions by any State 
was the end desired; that the power was given by the same words 
and in the same clause by which was conferred power to regulate 
commerce with foreign nations; and that it would be absurd to 
suppose that the transmission of the subjects of trade from th§ 
State of the buyer, or from the place of production to the market, 
was not contemplated, for without that there could be no con- 
summated trade, either with foreign nations or among the States. 
It is explained that where State laws alleged to be regulations of 
commerce among the States, have been sustained, they were laws 
Vv^hich related to bridges or dams across streams, wholly within 
the State, or police or health laws, or to subjects of a kindred 
nature, not strictly of commercial reflation. But the trans- 
portation of passengers or of merchandise from one State to an- 
18 



274 CASES ON CONSTITUTIONAL LAW. 

other is in its nature national, admitting of but one regulating' 
power; and it was to guard against the possibility of commercial 
embarrassments which would result if one State could directly or 
indirectly tax persons or property passing through it, or prohibit 
particular property from entrance into the State, that the power 
of regulating commerce among the States was conferred upon the 
federal government. 

"If in the present case," said Mr. Justice Matthews, "the law 
of Iowa operated upon all merchandise sought to be brought from 
another State into its limits, there could be no doubt that it 
would be a regulation of commerce among the States," and he 
concludes that this must be so, though it applied only to one class 
of articles of a particular kind. The legislation of Congress on 
the subject of interstate commerce by means of railroads, designed 
to remove trammels upon transportation between different States,. 
and upon the subject of the transportation of passengers and 
merchandise (Revised Statutes, sections 4253 to 4289, inclusive), 
including the transportation of nitroglycerine and other similar 
explosive substances, with the proviso that, as to them, "any 
State, territory, district, city or town within the United States" 
should not be prevented by the language used "from regulating or 
from prohibiting the traffic in or transportation of those sub- 
stances between persons or places lying or being within their re- 
spective territorial limits, or from prohibiting the introduction 
thereof into such limits for sale, use or consumption therein," is 
referred to as indicative of the intention of Congress that the 
transportation of commodities between the States shall be free, 
except where it is positively restricted by Congress itself, or by 
States in particular cases by the express permission of Congress. 
It is said that the law in question was not an inspection law, the 
object of which "is to improve the quality of articles produced by 
the labor of a country, to fit them for exportation; or, it may be, 
for domestic use;" Gibbons v. Ogden, 9 Wheat., 1, 203; Turner v. 
Maryland, 107 U. S., 38, 55; nor could it be regarded as a regTila- 
tion of quarantine or a sanitary provision for the purpose of pro- 
tecting the physical health of the community; nor a law to pre- 
vent the introduction into the State of diseases, contagious, in- 
fectious, or othervdse. Articles in such a condition as tend to 
spread disease are not merchantable, are not legitimate subjects 
of trade and commerce, and the self-protecting power of each 
State, therefore, may be rightfully exerted against their introduc- 
tion, and such exercise of power cannot be considered a regulation 
of commerce, prohibited by the Constitution; and the observa- 



LEISY V. HARDIN. 275 

tions of Mr. Justice Catron, in The License Cases, 5 How., 504, 
599, are quoted to the effect that what does not belong to com- 
merce is within the jurisdiction of the police power of the State, 
but that which does belong to commerce is within the jurisdiction 
of the United States; that to extend the police power over subjects 
of commerce would be to make commerce subordinate to that 
power, and would enable the State to bring within the police 
power "any article of consumption that a State might wish to ex- 
clude, whether it belonged to that which was drunk or to food 
and clothing; and with nearly equal claims to propriety, as malt 
liquors and the products of fruits other than grapes stand on no 
higher ground than the light wines of this and other countries, 
excluded in effect by the law as it now stands. And it would be 
only another step to regulate real or supposed extravagance in food 
and clothing." And Mr. Justice Matthews thus proceeds, p. 493: 
"For the purpose of protecting its people against the evils of in- 
temperance, it has the right to prohibit the manufacture within 
its limits of intoxicating liquors; it may also prohibit all domestic 
commerce in them between its own inhabitants, whether the arti- 
cles are introduced from other States or from foreign countries; 
it may punish those who sell them in violation of its laws; it 
may adopt any measures tending, even indirectly and remotely, 
to make the policy effective — until it passes the line of power 
delegated to Congress under the Constitution. It cannot, without 
the consent of Congress, express or implied, regulate commerce 
between its people and those of the other States of the Union in 
order to effect its end, however desirable such a regulation might 
be. . . . Can it be supposed that by omitting any express 
declaration on the subject. Congress has intended to submit to 
the several States the decision of the question in each locality of 
what shall and what shall not be articles of traffic in the inter- 
state commerce of the country? If so, it has left to each State, 
according to its own caprice and arbitrary will, to discriminate for 
or against every article grown, produced, manufactured or sold 
in any State and sought to be introduced as an article of com- 
merce into any other. If the State of Iowa may prohibit the im- 
portation of intoxicating liquors from all other States, it may also 
include tobacco, or any other article, the use or abuse of which it 
may deem deleterious. It may not choose, even, to be governed 
by considerations growing out of the health, comfort or peace of 
the community. Its policy may be directed to other ends. It 
may choose to establish a system directed to the promotion and 
benefit of its own agriculture, manufactures or arts of any de- 



276 CASES ON CONSTITUTIONAL LAW. 

seription, and prevent the introduction and sale within its limits 
of any or of all articles that it may select as coming into competi- 
tion with those which it seeks to protect. The police power of 
the State would extend to such cases, as well as to those in which 
it was sought to legislate in behalf of the health, peace and morals 
of the people. In view of the commercial anarchy and confusion 
that would result from the diverse exertions of power by the sev- 
eral States of the Union, it cannot be supposed that the Constitu- 
tion or Congress have intended to limit the freedom of commercial 
intercourse among the people of the several States." . . . 

[Here follow extracts from the opinion of Chief Justice Taxet 
in The License Cases, 5 Howard, 504.] 

But conceding the weight properly to be ascribed to the judicial 
utterances of this eminent jurist, we are constrained to say that 
the distinction between subjects in respect of which there can be 
of necessity only one system or plan of regulation for the whole 
country, and subjects local in their nature, and, so far as relating 
to commerce, mere aids rather than regulations, does not appear 
to us to have been sufficiently recognized by him in arriving at 
the conclusions announced. That distinction has been settled by 
repeated decisions of this court, and can no longer be regarded as 
open to re-examination. After all, it amounts to no more than 
drawing the line between the exercise of power over commerce 
with foreign nations, and among the States, and the exercise of 
power over purely local commerce and local concerns. 

The authority of Peirce v. jSTew Hampshire, in so far as it rests 
on the view that the law of Xew Hampsiiire was valid because 
CongTess has made no regulation on the subject, must be regarded 
as having been distinctly overthrown by the numerous cases here- 
inafter referred to. 

The doctrine now firmly established is, as stated by Mr. Justice 
Field, in Bowman v. Chicago, &c. Eailway Co., 125 U. S., 507, 
"that where the subject upon which Congress can act under its 
commercial power is local in its nature or sphere of operation, such 
as harbor pilotage, the improvement of harbors, the establishment 
of beacons and buoys to guide vessels in and out of port, the con- 
struction of bridges over navigable rivers; erection of wharves, 
piersj and docks, and the like, which can be properly regulated 
only by special provisions adapted to their localities, the State 
can act until Congress interferes and supersedes its authority; 
but where the subject is national in its character, and admits and 
requires uniformity of regulation, affecting alike all the States, 



LEISY V. HARDIN. 377 

such as transportation between the States, including the importa- 
tion of goods from one State into another. Congress can alone act 
upon it and provide the needed regulations. The absence of any 
law of Congress on the subject is equivalent to its declaration 
that commerce in that matter shall be free. Thus the absence of 
regulations as to interstate commerce with reference to any par- 
ticular subject is taken as a declaration that the importation of 
that article into the States shall be unrestricted. It is only after 
the importation is completed, and the property imported has 
mingled with and become a part of the general property of the 
State, that its regulations can act upon it, except so far as may be 
necessary to insure safety in the disposition of the import until 
thus mingled." 

The conclusion follows that, as the gTant of the power to regu- 
late commerce among the States, so far as one system is required, 
is exclusive, the States cannot exercise that power without the 
assent of Congress, and, in the absence of legislation, it is left for 
the courts to determine when State action does or does not amount 
to such exercise, or, in other words, what is or is not a regulation 
of such commerce. When that is determined, controversy is at 
an end. Illustrations exemplifying the general rule are numer- 
ous. Thus we have held the following to be regailations of inter- 
state commerce: A tax upon freight transported from State to 
State. Case of the State Freight Tax, 15 Wall., 232; a statute 
imposing a burdensome condition on ship-masters as a prerequi- 
site to the landing of passengers, Henderson v. Mayor of New 
York, 92 U. S., 259; a statute prohibiting the driving or convey- 
ing of any Texas, Mexican or Indian cattle, whether sound or dis- 
eased, into the State between the first day of March and the first 
day of November in each year. Railroad Co. v. Husen, 95 U. S., 
465; a statute requiring every auctioneer to collect and pay into 
the state treasury a tax on his sales, when applied to imported 
goods in the original packages by him sold for the importer. Cook 
V. Pennsylvania, 97 U. S., 566; a statute intended to regulate or 
tax, or to impose any other restrictions upon, the transmission of 
persons or property, or telegraphic messages, from one State to 
another, Wabash, St. Louis &c. Railway v. Illinois, 118 U. S., 557; 
a statute levying a tax upon non-resident drummers offering for 
sale or selling goods, wares or merchandise by sample, manufac- 
tured or belonging to citizens of other States, Robbins v. Shelby 
Taxing District, 120 U. S., 489. 

[Here follow similar rules derived from decisions in County of 
Mobile V. Kimball, 102 U. S., 691; Escanaba Co. v. Chicago, 107 



278 CASES ON CONSTITUTIONAL LAW. 

U. S., 678; Transportation Co. v. Parkersburg, 107 U. S., 691; 
Brown v. Houston, 114 XJ. S., 622; Morgan Steamship Co. v. 
Louisiana Board of Health, 118 U. S., 455; Smith v. Alabama, 
124 U. S., 465; Nashville &c. Eailway Co. v. Alabama, 128 U. S., 
96; Kimmish v. Ball, 129 U. S., 217; Welton v. The State of 
Missouri, 91 U. S., 275; Walling v. Michigan, 116 U. S., 446; 
Patterson v. Kentucky, 97 U. S., 501; Webber v. Virginia, 103 
IJ. S., 344; Mugler v. Kansas, 123 U. S., 623; Bartemeyer v. 
Iowa, 18 Wall., 129; Beer Company v. Massachusetts, 97 U. S., 
25; Poster v. Kansas, 112 TJ. S., 201; Kidd v. Pearson, 128 U. S., 
1; and Eilenbecker v. District Court of Plymouth County, 134 
TJ. S., 31.] 

These decisions rest upon the undoubted right of the States of 
the Union to control their purely internal affairs, in doing which 
they exercise powers not surrendered to the national government; 
but whenever the law of the State amounts essentially to a regu- 
lation of commerce with foreign nations or among the States, as 
it does when it inhibits, directly or indirectly, the receipt of an 
imported commodity or its disposition before it has ceased to be- 
come an article of trade between one State and another, or an- 
other country and this, it comes in conflict with a power which, in 
this particular, has been exclusively vested in the general gov- 
ernment, and is therefore void. 

In Mugler v. Kansas, supra, the court said (p. 662) that it 
could not "shut out of view the fact, within the knowledge of all, 
that the public health, the public morals and the public safety 
may be endangered by the general use of intoxicating drinks; nor 
the fact, established by statistics accessible to every one, that the 
idleness, disorder, pauperism and crime existing in the country 
are, in some degree at least, traceable to this evil." And that "if 
in the judgment of the legislature [of a State] the manufacture of 
Intoxicating liquors for the maker's own use, as a beverage, would 
tend to cripple, if it did not defeat, the effort to guard the com- 
munity against the evils attending the excessive use of such 
liquors, it is not for the courts, upon their views as to what is 
best and safest for the community, to disregard the legislative 
determination of that question. . . . 'Not can it be said that 
government interferes with or impairs any one's constitutional 
rights of liberty or of property, when it determines that the man- 
ufacture and sale of intoxicating drinks, for general or individual 
use, as a beverage, are, or may become, hurtful to society, and 
constitute, therefore, a business in which no one may lawfully 
engage." Undoubtedly, it is for the legislative branch of the 



LEISY V. HARDIN. 379 

state governments to determine whether the manufacture of par- 
ticuhir articles of traffic, or the sale of such articles, will injuri- 
ously affect the public, and it is not for Congress to determine 
what measures a State may properly adopt as appropriate or need- 
ful for the protection of the public morals, the public health, or 
the public safety; but notwithstanding it is not vested witli super- 
visory power over matters of local administration, the responsi- 
bility is upon Congress, so far as the regulation of interstate com- 
merce is concerned, to remove the restriction upon the State in 
dealing with imported articles of trade within its limits, which 
have not been mingled with the common mass of property therein, 
if in its Judgment the end to be secured justifies and requires such 
action. 

Prior to 1888 the statutes of Iowa permitted the sale of foreign 
liquors imported under the laws of the United Staies, provided 
the sale was by the importer in the original casks or packages, 
and in quantities not less than those in which they were required 
to be imported; and the provisions of the statute to this effect 
were declared by the Supreme Court of Iowa, in Pearson v. Inter- 
national Distillery, 72 Iowa, 348, 35-4, to be "intended to conform 
the statute to the doctrine of the United States Supreme Court, 
announced in Brown v. Maryland, 12 Wheat., 419, and License 
Cases, 5 How., 504, so that the statute should not conflict with 
the laws and authority of the United States." But that provision 
of the statute was repealed in 1888, and the law so far amended 
that we understand it now to provide that, whether imported or 
not, wine cannot be sold in Iowa except for sacramental purposes, 
nor alcohol, except for specified chemical purposes, nor intoxicat- 
ing liquors, including ale and beer, except for pharmaceutical and 
medicinal purposes, and not at all except by citizens of the State 
of Iowa, who are registered pharmacists, and have permits obtained 
as prescribed by the statute, a permit being also grantable to one 
discreet person in any township where a pharmacist does not ob- 
tain it. 

The plaintiffs in error are citizens of Illinois, are not pharma- 
cists, and have no permit, but import into Iowa beer, which they 
sell in original packages, as described. Under our decision in 
Bowman v. Chicago &c. Eailway Co., supra, they had the right to 
import this beer into that State, and in the view which we have 
expressed they had the right to sell it, by which act alone it 
would become mingled in the common mass of property within 
the State. Up to that point of time, we hold that in the absence 
of congressional permission to do so, the State had no power to 



280 CASES ON CONSTITUTIONAL LAW. 

interfere by seizure, or any other action, in prohibition of importa- 
tion and sale by the foreign or non-resident importer. "Whatever 
our individual views may be as to the deleterious or dangerous 
qualities of particular articles, we cannot hold that any articles 
which Congress recognizes as subjects of interstate commerce are 
not such or that whatever are thus recognized can be controlled 
by state laws amounting to regulations, while they retain that 
character; although, at the same time, if directly dangerous in 
themselves, the State may take appropriate measures to guard 
against injury before it obtains complete jurisdiction over them. 
To concede to a State the power to exclude, directly or indirectly, 
articles so situated, without congressional permission, is to con- 
cede to a majority of the people of a State, represented in the 
state legislature, the power to regulate commercial intercourse be- 
tween the States, by determining what shall be its subjects, when 
that power was distinctly granted to be exercised by the people 
of the United States, represented in Congress, and its possession 
by the latter was considered essential to that more perfect union 
which the Constitution was adopted to create. Undoubtedly, there 
is difficulty in drawing the line between the municipal powers of 
the one government and the commercial powers of the other, but 
when, that Kne is determined, in the particular instance, accom- 
modation to it, without serious inconvenience, may readily be 
found, to use the language of Mr. Justice Johnson, in Gibbons v. 
Ogden, 9 Wheat., 1, 238, in "a frank and candid co-operation for 
the general good." 

The legislation in question is to the extent indicated repugnant 
to the third clause of section 8 of Art. 1 of the Constitution of the 
United States, and therefore the judgment of the Supreme Court 
of Iowa is 

Reversed and tlte cause remanded for' furtlier proceedings not 
inconsistent ivith this opinio7i. 

Mb. Justice Geat, with whom concurred Me. Justice Hae- 
LA^T and Me. Justice Beewee, dissenting. ... 



MINNESOTA v. BARBER. 281 

MINNESOTA v. BAEBEE. 
136 U. S., 313. Decided 1890. 
[The facts are sufficiently stated in the opinion of the court.] 

Mr. Justice Harlan delivered the opinion of the court. 

Henry E. Barber, the appellee, was convicted before a justice 
of the peace in Eamsey County, Minnesota, of the offense of hav- 
ing wrongfully and unlawfully offered and exposed for sale, and 
of having sold for human food, one hiindred pounds of fresh un- 
cured beef, part of an animal slaughtered in the State of Illinois, 
but which had not been inspected in Minnesota, and "certified" 
before slaughter by an inspector appointed under the laws of the 
latter State. Having been committed to the common Jail of the 
county pursuant to a judgment of imprisonment for a term of 
thirty days, he sued out a writ of habeas corpus from the Circuit 
Court of the United States for the District of Minnesota, and 
prayed to be discharged from such imprisonment, upon the ground 
that the statute of that State, approved April 16, 1889, and under 
Avhich he was prosecuted, was repugnant to the provision of the 
Constitution giving Congress power to regulate commerce among 
the several States, as well as to the provision declaring that the 
citizens of each State shall be entitled to all privileges and im- 
munities of citizens in the several States. Art. 1, Sec. 8. Art. 4, 
Sec. 2. The court below, speaking by Judge Nelson, held the 
statute to be in violation of both of these provisions, and dis- 
charged the prisoner from custody. In re Barber, 39 Fed. Eep., 
641. A similar conclusion in reference to the same statute had 
been previously reached by Judge Blodgett, holding the Circuit 
Court of the United States for the Northern District of Illinois. 
Swift V. Sutphin, 39 Fed. Eep., 630. 

From the judgment discharging Barber the State has prosecuted 
the present appeal. Eev. Stat., § 764; 23 Stat., 437, c. 353. 

Attorneys representing persons interested in maintaining the 
validity of a statute of Indiana, alleged to be similar to that of 
Minnesota, were allowed to participate in the argument in this 
court, and to file briefs. 

The statute of Minnesota upon the validity of which the de- 
cision of the case depends is as follows: Laws of 1889, c. 8, p. 
51. . . . [Here follows the full text of the act, which is en- 
titled "An act for the protection of the puljlic health by providing 
for inspection, before slaughter, of cattle,_ sheep and swine de- 



283 CASES ON CONSTITUTIONAL LAW. 

signed for slaughter for liuinan food." It required that animals 
thus described should he inspected h}^ State officers within twenty- 
four hours before they are slaughtered. If found fit for slaughter, 
certificates to that effect should be given; if not found fit, they 
should be removed and destroyed.] 

The presumption that this statute was enacted, in good faith, 
for the purpose expressed in the title, — namely, to protect the 
health of the people of Minnesota, — cannot control the final de- 
termination of the question whether it is not repugnant to the 
Constitution of the United States. There ma}^ be no purpose 
upon the part of a legislature to violate the provisions of that in- 
strument, and yet a statute enacted by it, under the forms of law, 
may, by its necessary operation, be destructive of rights granted 
or secured by the Constitution. In such cases, the courts must 
sustain the supreme law of the land by declaring the statute un- 
constitutional and void. This principle of constitutional inter- 
pretation has been often announced by this court. In Henderson 
&c. V. Xew York &e., 92 IT. S., 259, 268, where a statute of Xew 
York imposing burdensome and almost impossible conditions on 
the landing of passengers from vessels employed in foreign com- 
merce, was held to be unconstitutional and void as a regulation of 
such commerce, the court said that "in whatever language a 
statute may be framed, its purpose must be determined by its nat- 
ural and reasonable effect." In People v. Compagnie Generale 
Transatlantique, 107 U. S., 59, 63, where the question was as to 
the validity of a statute of the same State, which was attempted 
to be supported as an inspection law authorized by section 10 of 
article 1 of the Constitution, and was so designated in its title, it 
was said: "A State cannot make a law designed to raise money to 
support paupers, to detect or prevent crimes, to guard against dis- 
ease and to cure the sick, an inspection law, within the constitu- 
tional meaning of that word, by calling it so in the title." So, 
in Soon Hing v. Crowley, 113 U. S., 703, 710: "The rule is 
general, with reference to the enactments of all legislative bodies, 
that the courts cannot inquire into the motives of the legislators 
in passing them, except as they may be disclosed on the face of 
the acts, or inferrible from their operation, considered with refer- 
ence to the condition of the country and existing legislation. The 
motives of the legislators, considered as the purposes they had in 
view, will always be presumed to be to accomplish that which 
follows as the natural and reasonable effect of their enactments." 
In Mugler v. Kansas, 123 U. S., 623, 661, the court, after observ- 
ing that every possible presumption is to be indulged in favor of 



I 



MINNESOTA v. BARBER. 283 

the validity of a statute, said that the judiciary must obey tlie 
Constitution rather than the lawmaking department of the gov- 
ernment, and must, upon its own responsibility, determine wheth- 
er, in any particular case, the limits of the Constitution have been 
passed. It was added: "If, therefore, a statute purporting to 
have been enacted to protect the public health, the public morals 
or the public safety, has no real or substantial relation to those 
objects, or is a palpable invasion of rights secured by the funda- 
mental law, it is the duty of the courts to so adjudge, and thereby 
give effect to the Constitution." Upon the authority of those 
cases, and others that could be cited, it is our duty to inquire, in 
respect to the statute before us, not only whether there is a real 
or substantial relation between its avowed objects and the means 
devised for attaining those objects, but whether by its necessary 
or natural operation it impairs or destroys rights secured by the 
Constitution of the United States. 

Underlying the entire argument in behalf of the State is the 
proposition that it is impossible to tell, by an inspection of fresh 
beef, veal, mutton, lamb, or pork, designed for human food, 
whether or not it came from animals that were diseased when 
slaughtered; that inspection on the hoof, within a very short time 
before animals ai'e slaughtered, is the only mode by which their 
condition can be ascertained with certainty. And it is insisted, 
with great confidence, that of this fact the court must take Judicial 
notice. If a fact, alleged to exist, and upon which the rigrhts of 
parties denend is within common experience and knowledge, it 
is one of which the courts will take Judicial notice. Brown v. 
Piper, 91 U. S., 37, 43; Phillips v. Detroit, 111 U. S., 604, 606. 
But we cannot assent to the suggestion that the fact alleged in 
this case to exist is of tliat class. It may be the opinion of some 
that the presence of disease in animals at the time of their being 
slaughtered, cannot be determined by inspection of the meat 
taken from them; but we are not aware that such is the view 
universally, or even generally, entertained. But if, as alleged, the 
inspection of fresh beef, veal, mutton, lamb, or pork will not 
necessarily show whether the animal from which it was taken 
was diseased when slaughtered, it would not follow that a statute 
like the one before us is within the constitutional power of the 
State to enact. On the contrary, the enactment of a similar stat- 
ute by each one of the States composing the Union would result 
in the destruction of commerce among the several States, sc far 
as such commerce is involved in the transportation from one part 
of the country to another of animal meats designed for human 



384 CASES ON CONSTITUTIONAL LAW. 

food, and entirely free from disease. A careful examination of the 
^Minnesota act will place tliis constrntion of it beyond question. 

The first section prohibits the sale of any fresh beef, veal, mut- 
ton, lamb, or pork for human food, except as provided in that 
act. The second and third sections provide that all cattle, sheep, 
and swine to be slaughtered for humaa food within the respective 
jurisdictions of the inspectors, shall be inspected by the proper 
local inspector appointed in j\Iinnesota, within twenty-four hours 
before the animals are slaughtered, and that a certificate shall be 
made by such inspector, showing (if such be the fact) that the 
animals, when slaughtered, were found healthy and in suitable 
condition to be slaughtered for human food. The fourth section 
makes it a misdemeanor, punishable by fine or imprisonment, for 
any one to sell, expose, or ofl^er for sale, for human food, in the 
State, any fresh beef, veal, mutton, lamb, or pork, not taken from 
an animal inspected and '"certified before slaughter, by the proper 
local inspector" appointed under that ac-t. As the inspection 
must take place within twenty-four hours immediately before the 
slaughtering, the act, by its neces-sary operation, excludes from 
the Minnesota market, practically, all fresh beef, veal, mutton, 
lamb, or pork — in whatever form, and although entirely sound, 
healthy, and fit for human food — ^taken from animals slaughtered 
in other States; and direct^ tends to restrict the slaughtering of 
animals, whose meat is to be sold in Minnesota for human food, to 
those engaged in such business in that State. This must be so, 
because the time, expense, and labor of sending animals from 
points outside of Minnesota to points in that State to be there in- 
spected, and bringing them back, after inspection, to be slaught- 
ered at the place from which the}' were sent — the slaughtering to 
take place within twenty-four hours after inspection, else the cer- 
tificate of inspection becomes of no value — will be so gTeat as to' 
amount to an absolute prohibition ujjon sales, in Minnesota, of 
meats from animals not slaughtered within its limits. "VThen to 
this is added the fact that the statute, by its necessary operatioii, 
prohibits the sale, in the State, of fresh beef, veal, mutton, lamb, 
or pork, from animals that may have been inspected carefully and 
thoroughly in the State where they were slaughtered, and before 
they were slaughtered, no doubt can remain as to its effect upon 
commerce among the several States. It will not do to say — cer- 
tainly no judicial tribunal can, with propriety, assume — that the 
people of Minnesota may not, with due regard to their health, 
rely upon inspections in other States of animals there slaughtered 
for purposes of human food. If the object of the statute had 



1 



MINNESOTA v. BARBER. 285 

been to deny altogether to the citizens of other States the privi- 
lege of selling, within the limits of Minnesota, for human food, 
any fresh beef, veal, mutton, lamb, or pork, from animals slaugh- 
tered outside of that State, and to compel the people of Minnesota, 
wishing to buy such meats, either to purchase those taken from 
animals inspected and slaughtered in the State, or to incur the 
cost of purchasing them, when desired for their own domestic use, 
at points beyond the State, that object is attained by the act in 
question. Our duty to maintain the Constitution will not permit 
us to shut our eyes to these obvious and necessary results of the 
Minnesota statute. If this legislation does not make such dis- 
crimination against the products and business of other States in 
favor of the products and business of Minnesota as interferes with 
and burdens commerce among the several States, it would be dif- 
ficult to enact legislation that would have that result. . . . 

The latest case in this court upon the subject of interstate com- 
merce, as affected by local enactments discriminating against the 
products and citizens of other States, is Walling v. Michigan. 116 
U. S., 4-16, -155. We there held to be uncons-titutional a statute of 
Michigan, imposing a license tax upon persons, not residing or 
having their principal place of business in that State, but whose 
business was that of selling or soliciting the sale of intoxicating 
liquors to be shipped into the State from places without, a similar 
tax not being imposed in respect to the sale and soliciting for sale 
of liquors manufactured in Michigan. Mr. Justice Bradley, deliv- 
ering the opinion of the court, said: "A discriminating tax im- 
posed by a State operating to the disadvantage of the products 
of other States when introduced into the first-mentioned State, 
is, in effect, a regulation in restraint of commerce among the 
States, aiid as such is a usurpation of the power conferred by the 
Constitution upon the Congress of the United States." 

It is, however, contended, in behalf of the State, that there is, 
in fact, no interference, by this statute, with the bringing of cattle, 
sheep, and swiile into Minnesota from other States, nor any dis- 
crimination against the products of business of other States, for 
the reason — such is the argument — that the statute requiring an 
inspection of animals on the hoof, as a condition of the privilege 
of selling, or offering for sale, in the State, the meats taken from 
them, is applicable alike to all owners of such animals, whether 
citizens of Minnesota or citizens of other States. To this we an- 
swer, that a statute may, upon its face, apply equally to the people 
of all the States, and yet be a regulation of interstate commerce 
which a State may not establish. A burden imposed by a State 



286 CASES ON CONSTITUTIONAL LAW. 

upon interstate commerce is not to be sustained simply because 
the statute imposing it applies alike to the people of all the States, 
including the people of the State enacting such statute. Eobbins 
Y. Shelby Taxing District, 120 U. S., 489, 497; Case of the State 
Freight Tax, 15 Wall., 232. The people of Minnesota have as 
much right to protection against the enactments of that State, in- 
terfering with the freedom of commerce among the States, as have 
the people of other States. Although this statute is not avowedly, 
or in terms, directed against the bringing into Minnesota of the 
products of other States, its necessary effect is to burden or ob- 
struct commerce with other States, as involved in the transporta- 
tion into that State, for purposes of sale there, of all fresh beef, 
veal, mutton, lamb, or pork, however free from disease may have 
been the animals from which it was taken. 

The learned counsel for the State relies with confidence upon 
Pattereon v. Kentucky, 97 U. S., 501, as supporting the principles 
for which he contends. . . . [This decision upheld as a 
proper exercise of the police power a Kentucky statute forbidding 
the sale in that State of illuminating oils that would ignite below a 
certain temperature.] ISTow, the counsel of the State asks: If 
the State may, hy the exercise of its police power, determine for 
itself what test shall be made of the safety of illuminating oils, 
and prohibit the sale of all oils not subjected to and sustaining 
such test, although such oils are manufactured by a process pat- 
ented under the Constitution and laws of the United States, why 
may it not determine for itself what test shall be made of the 
wholesomeness and safety of food and prohibit the sale oi all such 
food not submitted to and sustaining the test, although it may 
chance that articles otherwise subject to the Constitution and laws 
of the United States cannot sustain the test? The analogy, the 
learned counsel observes, seems close. But it is only seemingly 
close. There is no real analogy between that case and the one be- 
fore us. The Kentucky statute prescribed no test of inspection 
which, in view of the nature of the property, was either unusual or 
unreasonable, or which by its necessary operation discriminated 
against any particular oil because of the locality of its production. 
If it had prescribed a mode of inspection to which citizens of other 
States, having oils designed for illuminating purposes and which 
they desired to sell in the Kentucky market, could not have rea- 
sonably conformed, it would undoubtedly have been held to be an 
unauthorized burden upon interstate commerce. Looking at the 
nature of the property to which the Kentucky statute had refer- 
ence, there was no difficulty in the way of the patentee of the 



MINNESOTA v. BARBER. 387 

particular oil there in question submitting to the required local 
inspection. 

But a law providing for the inspection of animals whose meats 
are designed for human food cannot be regarded as a rightful ex- 
ertion of the police powers of the State, if the inspection pre- 
scribed is of such a character, or is burdened with such conditions, 
as will prevent altogether the introduction into the State of sound 
meats, the product of animals slaughtered in other States. It is 
one thing for a State to exclude from its limits cattle, sheep, or 
swine, actually diseased, or meats that, by reason of their con- 
dition, or the condition of the animals from which they are taken, 
are unfit for human food, and punish all sales of such animals or 
of such meats within its limits. It is quite a different thing for a 
State to declare, as does Minnesota by the necessary operation of 
its statute, that fresh beef, veal, mutton, lamb, or pork — articles 
that are used in every part of this country to support human 
life — shall not be sold at all for human food within its limits, 
unless the animal from which such meats are taken is inspected 
in that State, or, as is practically said, unless the animal is slaugh- 
tered in that State. 

One other suggestion by the counsel for the State deserves to 
be examined. It is, that so far as this statute is concerned, the 
people of Minnesota can purchase in other States fresh beef, veal, 
mutton, lamb, and pork, and bring such meats into Minnesota for 
their own personal use. We do not perceive that this view 
strengthens the case for the State, for it ignores the right which 
people of o+her States have in commerce between those States and 
the State of Minnesota. And it ignores the right of the people of 
Minnesota to bring into that State, for purposes of sale, sound and 
healthy meat, wherever such meat may have come into existence. 
But there is a consideration arising out of the suggestion just 
alluded to which militates somewhat against the theory that the 
statute in question is a legitimate exertion of the police powers of 
the State for the protection of the public health. If every hotel- 
keeper, railroad or mining corporation, or contractor, in Minne- 
sota, furnishing subsistence to large numbers of persons, and every 
private family in that State, that* is so disposed, can, without vio- 
lating this statute, bring into the State from other States and use 
for their own purposes, fresh beef, veal, mutton, lamb and pork, 
taken from animals slaughtered outside Minnesota which may not 
have been inspected at all, or not within twenty-four hours before 
being slaughtered, what becomes of the argument, pressed with 
so much earnestness, that the health of the people of that State 



288 CASES ON CONSTITUTIONAL LAW. 

requires that they he protected against the use of meats from 
animals not inspected in Minnesota within the twenty-four 
hours before being slaughtered? If the statute, while permitting 
the sale of meats from animals slaughtered, inspected and "certi- 
fied" in that State, had expressly forbidden the introduction from 
other States, and their sale in Minnesota, of all fresh meats, of 
every kind, without making any distinction between those that 
were from animals inspected on the hoof and those that were not 
so inspected, its unconstitutionality could not have been doubted. 
And yet it is so framed that this precise result is attained as to 
all sales in Minnesota, for human food, of meats from animals 
slaughtered in other States. 

In the opinion of this court the statute in question, so far as its 
provisions require, as a condition of sales in Minnesota of fresh 
beef, veal, mutton, lamb or pork for human food, that the animals 
from which such meats are taken shall have been inspected in 
Minnesota before being slaughtered, is in violation of the Consti- 
tution of the United States and void. 

TTie judgment discharging the aio])ellee from custody is affirmed, 



V. THE POLICE POWER. 



MUNN V. ILLINOIS. 
94 U. S., 118. Decided 1876. 

Eeeor to the Supreme Court of the State of Illinois. . . . 

[The facts are sufficiently stated in the opinion of the court.] 

Mr. Chief Justice Waite delivered the opinion of the court. 

The question to he determined in this case is whether the gen- 
eral assembly of Illinois can, under the limitations upon the legis- 
lative powers of the States imposed by the Constitution of the 
United States, fix by law the maximum of charges for the storage 
of grain in warehouses at Chicago and other places in the State 
having not less than one hundred thousand inhabitants, "in which 
grain is stored in bulk, and in which the grain of different owners 
is mixed together, or in which grain is stored in such a manner 
that the identity of different lots or parcels cannot be accurately 
preserved." 

It is claimed that such a law is repugnant — 

1. To that part of sect. 8, art. 1, of the Constitution of the 
ITnited States which confers upon Congress the power "to regulate 
commerce with foreign nations and among the several States;" 

2. To that part of sect. 9 of the same article, which provides 
that "no preference shall be given by any regulation of commerce 
or revenue to the ports of one State over those of another;" and 

3. To that part of amendment 1-i which ordains that no State 
shall "deprive any person of life, liberty, or property, without due 
process of law, nor deny to any person within its Jurisdiction the 
equal protection of the laws." 

We Avill consider the last of these objections first. 

Every statute is presumed to be constitutional. The courts 
ought not to declare one to be unconstitutional, unless it is clearly 
so. If there is doubt, the expressed will of the legislature should 
be sustained. 

19 289 



290 CASES ON CONSTITUTIONAL LAW. 

The Constitution contains no definition of the word "deprive/ 
as used in tlie Foiirteentli Amendment. To determine its signifi- 
cation, therefore, it is necessary to ascertain the effect wliich 
usage has given it, Avhen employed in the same or a like con- 
nection. 

Wliile this provision of the amendment is new in the Constitu- 
tion of the United States, as a limitation upon the powers of the 
States, it is old as a principle of civilized government. It is 
found in I\Iagna Charta, and, in substance if not in form, in 
nearly or quite all the constitutions that have been from time to 
time adopted by the several States of the Union. By the Fifth. 
Amendment, it was introduced into the Constitution of the United 
States as a limitation upon the powers of the national government, 
and by the Fourteenth, as a guarantee against any encroachments 
upon an acknowledged right of citizenship by the legislatures of 
the States. 

"Wlien the people of the United Colonies separated from Great 
Britain, they changed the form, but not the substance, of their 
government. They retained for the purposes of government all 
the powers of the British Parliament, and through their State 
constitutions, or other forms of social compact, undertook to give 
practical effect to such as they deemed necessary for the common 
good and the security of life and property. All the powers which 
they retained they committed to their respective States, unless in 
express terms or by implication reserved to themselves. Subse- 
quently, when it was found necessary to establish a national gov- 
ernment for national purposes, a part of the powers of the States 
and of the people of the States was granted to the United States 
and the people of the United States. This grant operated as a 
further limitation upon the powers of the States so that now the 
governments of the States possess all the powers of the Parlia- 
ment of England, except such as have been delegated to the 
United States or reserved by the people. The reservations by 
the people are shown in the prohibitions of the constitutions. 

When one becomes a member of society, he necessarily parts 
with some rights or privileges which, as an individual not affected 
by his relations to others, he might retain. "A body politic," as 
aptly defined in the preamble of the Constitution of Massachusetts, 
"is a social compact by which the whole people covenants with 
each citizen, each citizen with the whole people, that all shall 
be governed by certain laws for the common good." This does 
not confer power u^Don the whole people to control rights which 
are purely and exclusively private (Thorpe v. E. & A". Eailroad Co., 



i 



MUNN V. ILLINOIS. 291 

27 Vt., 1^3); but it does authorize the establishment of laws 
requiring each citizen to so conduct himself, and so use his own 
property, as not unnecessarily to injure another. This is the very 
essence of government, and has found expression in the maxim, 
sic utere tuo ut alienum non laedas. From this source come the 
police powers, which, as was said by Mr. Chief Justice Taney in 
the License Cases, 5 How., 583, "are nothing more or less than 
the powers of government inherent in every sovereignty, . . . 
that is to say, . . . the power to govern men and things." 
Under these powers the government regulates the conduct of its 
citizens one towards another, and the manner in which each shall 
use his own property, when such regulation becomes necessary for 
the public good. In their exercise it has been customary in Eng- 
land from time immemorial, and in this country from its first 
colonization, to regulate ferries, common carriers, hackmen, 
bakers, millers, wharfingers, innkeepers, &c., and in so doing 
to fix a maximum of charge to be made for services rendered, ac- 
commodations furnished, and articles sold. To this day, statutes 
are to be found in many of the States upon some or all these 
subjects; and we think it has never yet been successfully con- 
tended that such legislation came within any of the constitutional 
prohibitions against interference with private property. With the 
Fifth Amendment in force. Congress, in 1820, conferred power 
upon the city of Washington "to regulate . . . the rates of 
wharfage at private wharves, . . . the sweeping of chimneys, 
and to fix the rates of fees therefor, . . . and the weight and 
quahty of bread," 3 Stat., 587, sec. 7; and, in 1848, "to make 
all necessary regulations respecting hackney carriages and the 
rates of fare of the same, and the rates of hauling by c&rtmen, 
wagoners, carmen, and draymen, and the rates of commission of 
auctioneers," 9 id., 224, sect. 2. 

From this it is apparent that, down to the time of the adop- 
tion of the Fourteenth Amendment, it Avas not supposed that 
statutes regulating the use, or even the price of the use, of private 
property necessarily deprived an owner of his property without 
due process of law. Under some circumstances they may, but not 
under all. The amendment does not change the law in this par- 
ticular: it simply prevents the States from doing that which will 
operate as such a deprivation. 

This brings us to inquire as to the principles upon Avhich this 
power of regulation rests, in order that we may determine what 
is within and what without its operative effect. Looking, then, 
to the common law, from whence came the right which the Con- 



293 CASES ON CONSTITUTIONAL LAW. 

^>, stitution iDrotects, w*e find that when private property is "affected 
with a public interest^ it ceases to be juris privati only." This 
was said by Lord Chief Justice Hale more than two hundred years 
ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, 
and has been accepted without objection as an essential element 
in the law of property ever since. Property does become clothed 
with a public interest when used in a manner to make it of public 
consequence, and affect the community at large. T\lien, therefore, 
one devotes his property to a use in which the public has an 
interest, he, in effect, grants to the public an interest in that 
use, and must submit to be controlled by the public for the com- 
mon good, to the extent of the interest he has thus created. He 
may withdraw his grant by discontinuing the use; but, so long 
as he maintains the use, he must submit to the control. 

Thus, as to ferries. Lord Hale says, in his treatise De Jure 
Maris, 1 Harg. Law Tracts, 6, the king has "sl right of fran- 
chise or privilege, that no man may set ur; a common ferry for all 
passengers, "ndthout a prescription time out of mind or a charter 
from the king. He may make a ferry for his own use or the use 
of his family, but not for the common use of all the king-'s sub- 
jects passing that way; because it doth in consec^uence tend to 
a common charge, and is become a thing of public interest and 
use, and every man for his passage pays a toll, which is a common 
charge, and every ferry ought to be under a public regulation, 
viz., that it give attendance at due times, keep a boat in due order 
and take but reasonable toll; for if he fail in these he is finable." 
So if one owns the soil and landing-places on both banks .of a 
stream, he cannot use them for the purposes of a public ferry, ex- 
cept upon such terms and conditions as the body politic may 
from time to time impose; and this because the common good 
requires that all public ways shall be under the control of the 
public authorities. This privilege or prerogative of the king, who 
in this connection onh^ represents and gives another name to the 
body politic, is not primarily for his profit, but for the protection 
of the people and the promotion of the general welfare. . . . 

[Here follows another passage from Lord Hale regarding 
wharves.] 

This statement of the law by Lord Hale was cited with appro- 
bation and acted upon by Lord Kenyon at the beginning of the 
present centurj', in Bolt v. Stennett, 8 T. E., 606. 

And the same has been held as to warehouses and warehouse- 
men. In Aldnutt v. Inglis, 12 East, 527, decided in 1810, it 



MUNN V. ILLINOIS. 293 

apjDeared that the London Dock Company had built warehouses 
in which wines were taken in store at such rates of charge as the 
company and the owners might agree upon. Afterwards tlie 
company obtained authority, under tlie general warehousing act, 
to receive wines from importers before the duties upon the im- 
portation were paid; and the question was, whether they could 
charge arlntrary rates for such storage, or must be content with 
a reasonable compensation. . . . [Here follow several pas- 
sages from the opinions in this case, in which it was held that 
the charges must be reasonaljle. ] 

In later times, the same principle came under consideration in 
the Supreme Court of Alabama. That court was called upon, in 
1841, to decide whether the power granted to the city of Mobile 
to regulate the weight and price of bread was unconstitutional, 
and it was contended that "it would interfere with the right of 
the citizen to pursue his lawful trade or calling in the mode his 
judgment might dictate;" but the court said, "there is no motive 
. . . for this interference on the ])art of the legislature with 
the lawful actions of individuals, or the mode in which private 
property shall be enjoyed, unless such calling affects the public in- 
terest, or private property is employed in a manner which directly 
affects the body of the people. Upon this principle, in this State, 
tavern-keepers are licensed; . . . and the County Court is re- 
quired, at least once a year, to settle the rates of innkeepers. Upon 
the same principle is founded the control which the legislature has 
always exercised in the establishment and regulation of mills, fer- 
ries, bridges, turnpike roads, and other kindred subjects." Mobile 
V. Yuille, 3 Ala., n. s., 140. 

From the same source comes the power to regulate the charges 
of common carriers, which was done in England as long ago 
as the third year of the reign of William and Mary, and con- 
tinued until within a comparatively recent period. And in the first 
statute we find the following suggestive preamble, to wit: — 

"And whereas divers wagoners and other carriers, by com- 
bination amongst themselves, have raised the prices of carriage 
of goods in many places to excessive rates, to the great injury 
of the trade: Be it, therefore, enacted," &c. 3 "W. & M., c. 12, 
§ 24; 3 Stat, at Large (Great Britain), 481. 

Common carriers exercise a sort of public office, and have duties 
to perform in which the public is interested. New Jersey Nav. 
Co. V. Merchants' Bank, 6 How., 382. Their business is, there- 
fore, "affected with a public interest," within the meaning of 
the doctrine which Lord Hale has so forcibly stated. 



294 CASES ON CONSTITUTIONAL LAW= 

But we need not go further. Enoiigii has alread}^ been said to 

,, show that, when private property is devoted to a public use, it is 

' subject to public regulation. It remains only to ascertain whether 

the warehouses of these plaintiffs in error, and the business which 

is carried on there, come within the operation of this principle. 

For this purpose we accept as true the statements of fact con- 
tained in the elaborate brief of one of the counsel of the plaintiffs 
in error. From these it appears that "the great producing region 
of the West and JSTorth-west sends its grain by water and rail to 
Chicago, where the greater part of it is shipped by vessel for 
transportation to the seaboard by the Great Lakes, and some of it 
is forwarded by railway to the Eastern ports. . . . Vessels, 
to some extent, are loaded in the Chicago harbor, and sailed 
through the St. Lawrence directly to Europe. . . . The quan- 
tity [of grain] received in Chicago has made it the greatest grain 
market in the world. This business has created a demand for 
means by which the immense quantity of grain can be handled or 
stored, and these have been found in grain warehouses, which are 
commonly called elevators, because the gi'ain is elevated from the 
boat or car, by machinery operated by steam, into the bins pre- 
pared for its reception, and elevated from the bins, by a like 
process, into the vessel or car which is to carry it on. . . . In 
this way the largest traffic between the citizens of the country 
north and west of Chicago and the citizens of the country lying 
on the Atlantic coast north of Washington is in grain which 
passes through the elevators of Chicago. In this way the trade 
in grain is carried on by the inhabitants of seven or eight of the 
great States of the West with four or five of the States lying on the 
sea-shore, and forms the largest part of interstate commerce in 
these States. The grain warehouses or elevators in Chicago are 
immense structures, holding from 300,000 to 1,000,000 bushels 
at one time, according to size. They are divided into bins of large 
capacity and great strength. . . . They are located with the 
river harbor on one side and the railway tracks on the other; and 
the grain is run through them from car to vessel, or boat to car, 
^s may be demanded in the course of business. It has been found 
I impossible to preserve each owner's gTain separate, and this has 
given rise to a system of inspection and grading, by which the 
grain of different owners is mixed, and receipts issued for the 
number of bushels, which are negotiable, and redeemable in like 
kind, upon demand. This mode of conducting the business was 
Inaugurated more than twenty years ago, and has grown to im- 
mense proportions The railways have found it impracticable to 



MUNN V. ILLINOIS. 395 

own such elevators, and public policy forbids the transaction of 
such business by the carrier; the ownership has, therefore, been 
by private individuals, who have embarked their capital and de- 
voted their industry to such business as a private pursuit." 

In this connection it must also be borne in mind that, although 
in 1874 there were in Chicago fourteen warehouses adapted to 
this particular business, and owned by about thirty persons, nine 
business firms controlled them, and that the prices charged and 
received for storage were such "as have been from year to year 
agreed upon and established by the different elevators or ware- 
houses in the city of Chicago, and which rates have been annually 
published in one or more newspapers printed in said city, in the 
month of January in each year, as the established rates for the 
year then next ensuing such publication." Thus it is apparent 
that all the elevating facilities through which these vast produc- 
tions "of seven or eight great States of the West" must pass on 
the way "to four or five of the States on the sea-shore" may be 
a "virtual" monopoly. 

Under such circumstances it is difficult to see why, if the com- 
mon carrier, or the miller, or the ferryman, or the innkeeper, or 
the wharfinger, or the baker, or the cartman, or the hackney- 
coachman, pursues a public employment and exercises "a sort of 
public office," these plaintiffs in error do not. They stand, to use 
again the language of their counsel, in the very "gateway of com- w 
merce," and take toll from all who pass. Their business most 
certainly "tends to a common charge, and is become a thing of 
public interest and use." Every bushel of grain for its passage 
"pays a toll, which is a common charge," and therefore, according 
to Lord Hale, every such warehouseman "ought to be under 
public regulation, viz., that he . . . take but reasonable toll." 
Certainly, if any business can be clothed "with a public interest 
and cease to be jziris jjrivati only," this has been. It may not 
be made so by the operation of the Constitution of Illinois or 
this statute, but it is by the facts. 

We also are not permitted to overlook the fact that, for some 
reason, the people of Illinois, when they revised their Constitu- 
tion in 1870, saw fit to make it the duty of the general assembly 
to pass laws "for the protection of producers, shippers, and re- 
ceivers of grain and produce," art. 13, sect. 7; and by sect. 5 of 
the same article, to require all railroad companies receiving and 
transporting grain in bulk or otherwise to deliver the same at any 
elevator to which it might be consigned, that could be reached'^ 
by any track that was or could be used by such company, and that 



296 CASES ON CONSTITUTIONAL LAW. 

all railroad companies slionld permit connections to be made with 
their tracks, so that any pnbhc warehouse, &c., might be reached 
by the cars on their railroads. This indicates very clearly that 
during the twenty years in which this peculiar business had been 
assuming its present "immense proportions," something had oc- 
curred which led the whole body of the people to suppose that 
remedies such as are usually employed to prevent abuses by virtual 
monopolies might not be inappropriate here. For our purposes 
we must assume that, if a state of facts could exist that would 
justify such legislation, it actually did exist when the statute 
now under consideration was passed. For us the question is 
one of power, not of expediency. If no state of circumstances 
could exist to justify such a statute, then we may declare this 
one void, because in excess of the legislative power of the State. 
But if it could, we must presume it did. Of the propriety of 
--^legislative interference within the scope of legislative power, the 
legislature is the exclusive judge. 

Neither is it a matter of any moment that no precedent can 
be found for a statute precisely like this. It is conceded that the 
business is one of recent origin, that its growth has been rapid, 
and that it is already of great importance. And it must also be 
conceded that it is a business in which the whole public has a 
direct and positive interest. It presents, therefore, a case for the 
application of a long-known and well-established principle in social 
science, and this statute simply extends the law so as to meet 
this new development of commercial progress. There is no at- 
tempt to compel these owners to grant the public an interest in 
their property, but to declare their obligations, if they use it 
in this particular manner. 

It matters not in this case that these plaintiffs in error had 
built their warehouses and established their business before the 
regulations complained of were adopted. What they did was from 
the beginning subject to the power of the body politic to require 
them to conform to such regulations as might be established by the 
proper authorities for the common good. They entered upon 
their business and provided themselves with the means to carry 
it on subject to this condition. If they did not wish to submit 
themselves to such interference, they should not have clothed the 
public with an interest in their concerns. The same principle 
applies to them that does to the proprietor of a hackney-carriage, 
and as to him it has never been supposed that he was exempt 
from regulating statutes or ordinances because he had purchased 



MUNN V. ILLINOIS. 297 

his horses and carriage and established his business before the 
statute or the ordinance was adopted. 

It is insisted, however, that the owner of property is entitled 
to a reasonable compensation for its use, even though it be clothed 
with a public interest, and that what is reasonable is a judicial 
and not a legislative question. 

As has already been shown, the practice has been otherwise. 
In countries where the common law prevails, it has been custom- 
ary from time immemorial for the legislature to declare what shall 
be a reasonable compensation under such circumstances, or, per- 
haps more properly speaking, to fix a maximum beyond which any 
charge made would be unreasonable. Undoubtedly, in mere pri- 
vate contracts, relating to m^atters in which the public has no 
interest, what is reasonable must be ascertained judicially. But 
this is because the legislature has no control over such a contract. 
So, too, in matters which do atfect the public interest, and as to 
which legislative control may be exercised, if there are no statu- 
tory regulations upon the subject, the courts must determine what 
is reasonable. The controlling fact is the power to regulate at all. 
If that exists, the right to establish the maximum of charge, as 
one of the means of regulation, is implied. In fact, the common- 
law rule, which requires the charge to be reasonable, is itself 
a regulation as to price. Without it the owner could make his 
rates at will, and compel the public to yield to his terms, or forego 
the use. 

But a mere common-law regulation of trade or business may be 
changed by statute. A person has no property, no vested interest, 
in any rule of the common law. That is only one of the forms 
of municipal law, and is no more sacred than any other. Eights 
of property which have been created by the common law cannot 
be taken away without due process; but the law itself, as a rule 
of conduct, may be changed at the will, or even at the whim, 
of the legislature, unless prevented by constitutional limitations. 
Indeed, the great office pf statutes is to remedy defects in the 
common law as they are developed, and to adapt it to the changes 
of time and circumstance. To limit the rate of charge for services 
rendered in a public employment, or for the use of property in 
which the public has an interest, is only changing a regulation 
which existed before. It establishes no new principle in the law:, 
but only gives a new effect to an old one. 

We know that this is a power which may be abused; but that is 
no argument against its existence. For protection against abuses 



1/ 



298 CASES ON CONSTITUTIONAL LAW. 

by legislatures the people must resort to the polls, not to the 
courts. 

After what has already been said, it is unnecessary^ to refer at 
length to the effect of the other provision of the Fourteenth 
Amendment Tvhich is relied upon, viz., that no >State shall "deny 
to any person within its jurisdiction the equal protection of the 
laws." Certainly, it cannot be claimed that this prevents the 
State from regulating the fares of hackmen or the charges of 
draymen in Chicago, unless it does the same thing in every other 
place within its jurisdiction. But, as has been seen, the power 
to regulate the business of warehouses depends upon the same 
\j principle as the power to regulate hackmen and drajTuen, and 
what cannot be done in the one case in this particular cannot be 
done in the other. 

"We come now to consider the effect upon this statute of the 
power of Congress to regulate commerce. 

It was very properly said in the case of the State Tax on Eail- 
way Gross Eeceipts, 15 Wall., 293, that "it is not ever}i;hing that 
affects commerce that amounts to a regulation of it, "within the 
meaning of the Constitution." The warehouses of these plaintiff's 
in error are situated and their business carried on exclusively 
within the limits of the State of Illinois. They are used as instru- 
ments by those engaged in State as well as those engaged in inter- 
state commerce, but they are no more necessaril)' a part of com- 
merce itself than the dray or the cart by which, but for them, 
grain would be transferred from one railroad station to another. 
Incidentally they may become connected with interstate com- 
merce, but not necessarily so. Their regulation is a thing of 
domestic concern, and, certainly, until Congress acts in reference 
to their interstate relations, the State may exercise all the powers 
of government over them, even though in so doing it may indi- 
rectly operate upon commerce outside its immediate jurisdiction. 
We do not say that a case may not arise in which it will be found 
that a State, under the form of regulating its own affairs, has 
encroached upon the exclusive domain of Congress, in respect to 
interstate commerce, but we do say that, upon the facts as they 
are represented to us in this record, that has not been done. 

The remaining objection, to wit, that the statute in its present 

form is repug-nant to sect. 9, art. 1, of the Constitution of the 

United States, because it gives preference to the ports of one 

i State over those of another, may be disposed of by the single 

^•J remark that this provision operates only as a limitation of the 



ESCANABA COMPANY v. CHICAGO. , 299 

powers of Congress, and in no respect affects the States in the 
regulation of their domestic affairs. 

We conclude, therefore, that the statute in question is not re- 
pugnant to the Constitution of the United States, and that there 
is no error in the judgment. In jjassing upon this case we have 
not been unmindful of the vast importance of the questions in- 
volved. This and cases of a kindred character were argued before 
us more than a year ago by most eminent counsel, and in a manner 
worthy of their well-earned reputations. We have kept the 
cases long under advisement, in order that their decision might 
be the result of our mature deliberations. 

Judgment affirmed. 

[Mr. Justice Field rendered a dissenting opinion, in which 
Mr, Justice Strong concurred.] 



ESCANABA COMPANY v. CHICAGO 

107 U. S., 678. Decided 1882. 

Appeal from the Circuit Court of the United States for the 
Northern District of Illinois. 

The case is fully stated in the opinion of the court. . . . 

Mr. Justice Field delivered the opinion of the court. 

The Escanaba and Lake Michigan Transportation Company, a 
corporation created under the laws of Michigan, is the owner of 
three steam-vessels engaged in the carrying trade between ports 
and places in different states on Lake Michigan and the navigable 
waters connecting with it. The vessels are enrolled and licensed 
for the coasting trade, and are principally employed in carrying 
iron ore from the port of Escanaba, in Michigan, to the docks 
of the Union Iron and Steel Company on the south fork of the 
south branch of the Chicago River in the city of Chicago. In 
their course up the river and its south branch and fork to the 
docks they are required to pass through draws of several bridges 
constructed over the stream by the city of Chicago; and it is of 
obstructions caused by the closing of the draws, under an ordi- 
nance of the city, for a designated hour of the morning and 
evening during week-days, and by a limitation of the time to ten 
minutes, during which a draw may be left open for the passage of 
a vessel, and by some of the piers in the south branch and fork, 
and the bridges resting on them, that the cor]3oration complains, 
and to enjoin the city from closing the draws for the morning 



300 CASES ON CONSTITUTIONAL LAW. 

and evening hours designated, and enforcing the ten minutes' 
limitation, and to compel the removal of the objectionable piers 
and bridges, the present bill is filed. 

The river and its branches are entirely within the State of Illi- 
nois, and all of it, and nearly all of both branches that is naviga- 
ble, are within the limits of the city of Chicago. The river, from 
the junction of ifs two branches to the lake, is about three-fourths 
of a mile in length. The branches flow in opposite directions 
and meet at its head, nearly at right angles with it. Originally 
the width of the river and its branches seldom exceeded one hun- 
dred and fifty feet; of the branches and fork it was often less 
than one hundred feet; but it has been greatly enlarged by the 
city for the convenience of its commerce. 

The city fronts on Lake Michigan, and the mouth of the Chi- 
cago Eiver is near its center. The river and its branches divide 
the city into three sections; one lying north of the main river 
and east of its north branch, which may be called its northern 
division; one lying between the north and south branches, which 
may be called its western division; and one lying south of the 
main river and east of the south branch, which may be called 
its southern division. Along the river and its branches the city 
has grown up into magnificent proportions, having a population 
of six hundred thousand souls. Eunning back from them on both 
sides are avenues and streets lined with blocks of edifices, public 
and private, with stores and warehouses, and the immense variety 
of buildings suited for the residence and the business of this 
vast population. These avenues and streets are connected by a 
great number of bridges, over which there is a constant passage 
of foot-jDassengers and of vehicles of all kinds. A slight impedi- 
ment to the movement causes the stoppage of a crowd of passen- 
gers and a long line of vehicles. 

The main business of the city, where the principal stores, ware- 
houses, offices, and public buildings are situated, is in the southern 
division of the city; and a large number of the persons who do 
business there reside in the northern or the western division, or 
in the suburbs. 

Wliile this is the condition of business in the city on the land, 
the river and its branches are crowded with vessels of all kinds; 
sailing craft and steamers, boats, barges, and tugs, moving back- 
wards and forwards, and loading and unloading. Along the banks 
there are docks, warehouses, elevators, and all the appliances for 
shipping and reshipping goods. To these vessels the unrestricted 
navigation of the river and its branches is of the utmost impor- 



I 



ESCANABA COMPANY v. CHICAGO. 301 

tance; while to those who are compelled to cross the river and its 
hranches the bridges are a necessity. The object of wise legisla- 
tion is to give facilities to both, with the least obstruction to 
either. This the city of Chicago has endeavored to do. 

The State of Illinois, within which, as already mentioned, the 
river and its branches lie, has vested in the authorities of the city 
Jurisdiction over bridges within its limits, their construction, re- 
pair, and use, and empowered them to deepen, widen, and change 
the channel of the stream, and to make regulations in regard to 
the times at which the bridges shall be kept open for the passage 
of vessels. 

Acting upon the power thus conferred, the authorities have 
endeavored to meet the wants of commerce with other States, and 
the necessities of the population of the city residing or doing 
business in different sections. For this purpose they have pre- 
scribed as follows: that "Between the hours of six' and seven 
o'clock in the morning, and half-past five and half-past six o'clock 
in the evenings, Sundays excepted, it shall be unlawful to open 
any bridge within the city of Chicago;" and that "During the 
hours between seven o'clock in the morning and half-past five 
o'clock in the evening, it shall be unlawful to keep open any 
bridge within the city of Chicago for the purpose of permitting 
vessels or other crafts to pass through the same, for a longer 
period at any one time than ten minutes, at the expiration of 
which period it shall be the duty of the bridge-tender or other 
person in charge of the bridge to display the proper signal, and 
immediately close the same, and keep it closed for fully ten min- 
utes for such persons, teams, or vehicles as may be waiting to pass 
over, if so much time shall be required; when the said bridge 
shall again be opened (if necessary for vessels to pass) for a like 
period, and so on alternately (if necessary) during the hours last 
aforesaid; and in every instance where any such bridge shall be 
open for the passage of any vessel, vessels, or other craft, and 
closed before the expiration of ten minutes from the time of open- 
ing, said bridge shall then, in every such case, remain closed for 
fully ten minutes, if necessary, in order to allow all persons, teams, 
and vehicles in waiting to pass over said bridge." 

The first of these requirements was called for to accommodate 
clerks, apprentices, and laboring men seeking to cross the bridges, 
at the hours named, in going to and returning from their places of 
labor. Any unusual delay in the morning would derange their 
business for the day, and subject them to a corresponding loss of 
wages. At the hours specified there is three times — so the record 



303 CASES ON CONSTITUTIONAL LAW. 

shows — the usual number of pedestrians going and returning that 
there is during other hours. 

The limitation of ten minutes for the passage of the draws by 
vessels seems to have been eminently wise and proper for the pro- 
tection of the interests of all parties. Ten minutes is ample time 
for any vessel to pass the draw of a bridge, and the allowance of 
more time would subject foot-passengers, teams, and other vehicles 
to great inconvenience and delays. 

The complainant principally objects to this ten minutes' lim- 
itation, and to the assignment of the morning and evening hour 
to pedestrians and vehicles. It insists that the navigation of the 
river and its branches should not be thus delayed; and that the 
rights of commerce by vessels are paramount to the rights of com- 
merce by any other way. 

But in this view the complainant is in error. The rights of 
each class are to be enjoyed without invasion of the equal rights 
of others. Some concession must be made on every side for the 
convenience and the harmonious pursuit of different occupations. 
Independently of any constitutional restrictions, nothing would 
seem more just and reasonable, or better designed to meet the 
wants of the population of an immense city, consistently with the 
interests of commerce than the ten minutes rule and the 
assignment of the morning and evening hours which the city ordi- 
nance has prescribed. 

The power vested in the general government to regulate inter- 
state and foreign commerce involves the control of the waters 
of the United States which are navigable in fact, so far as it may 
be necessary to insure their free navigation, when by themselves 
or their connection with other waters thev form a continuous 
channel for commerce among the States or with foreign coun- 
tries. The Daniel Ball^, 10 Wall., 557. Such is the case with the 
Chicago Eiver and its branches. The common-law test of the 
navigability of waters, that they are subject to the ebb and flow 
of the tide, grew out of the fact that in England there are no 
waters navigable in fact, or to any great extent, which are not 
also affected by the tide. That test has long since been discarded 
in this country. Vessels larger than any which existed in Eng- 
land, when that test was established, now navigate rivers and 
inland lakes for more than a thousand miles beyond the reach 
of any tide. That test only becomes important when considering 
the rights of riparian owners to the bed of the stream, as in 
some States it governs in that matter. 

The Chicago Eiver and its branches must, therefore, be deemed 



ESCANABA COMPANY v. CHICAGO. 303 

navigable waters of the United States, over^whicli Congress under 
its commercial power may exercise control to the extent neces- 
sary to protect, preserve, and improve their free navigation. 

But the States have full power to regulate within their limits 
matters of internal police, including in that general designation 
whatever will promote the peace, comfort, convenience, and pros- 
perity of their people. This power embraces the construction of 
roads, canals, and bridges, and the establishment of ferries, and 
it can generally be exercised more wisely by the States than by a 
distant authority. They are the first to see the importance of 
such means of internal communication, and are more deeply con- 
cerned than others in their wise management. Illinois is more 
immediately affected by the bridges over the Chicago Eiver and 
its branches than any other State, and is more directly con- 
cerned for the prosperity of the city of Chicago, for the con- 
venience and comfort of its inhabitants, and the growth of its 
commerce. And nowhere could the power to control the bridges 
in that city, their construction, form, and strength, and the sise 
of their draws, and the manner and times of using them, be bet- 
ter vested than with the State, or the authorities of the city upon 
whom it has devolved that duty. When its power is exercised, so 
as to unnecessarily obstruct the navigation of the river or its 
branches. Congress may interfere and remove the obstruction. If 
the power of the State and that of the Federal government come 
in conflict, the latter must control and the former yield. This 
necessarily follows from the position given by the Constitution to 
legislation in pursuance of it, as the supreme law of the land. 
But until Congress acts on the subject, the power of the State 
over bridges across its navigable streams is plenary. This doc- 
trine has been recognized from the earliest period, and approved 
in repeated cases, the most notable of which are Willson v. The 
Blackbird Creek Marsh Co., 3 Pet., 245, decided in 1829, and 
Gilman v. Philadelphia, 3 Wall., 713, decided in 1865. . . . 
[Here follow citations from these cases and from Pound v. Turck, 
95 IT. S., 459.] 

The doctrine declared in these several decisions is in accord- 
ance with the more general doctrine now firmly established, that 
the commercial power of Congress is exclusive of State authority 
only when the subjects upon which it is exercised are national in 
their character, and admit and require uniformity of regulation 
affecting alike all the States. Upon such subjects only that 
authority can act which can speak for the whole country. Its 
non-action is therefore a declaration that they shall remain free 



304 CASES ON CONSTITUTIONAL LAW. 

from all regulation. .Welton v. State of Missouri, 91 TJ. S., 275; 
Henderson v. Mayor of Xew York, 92 Id., 259; County of Mobile 
V. Kimball, 102 Id., 691. 

On the other hand, where the subjects on which the power may 
be exercised are local in their nature or operation, or constitute 
mere aids to commerce, the authority of the State may be exerted 
for their regulation and management until Congress interferes 
and supersedes it. As said in the case last cited: "The uniform- 
ity of commercial regulations Avhich the grant to Congress was 
designed to secure against conflicting State provisions, was neces- 
sarily intended only for cases where such uniformity is practicable. 
Where, from the nature of the subject or the sphere of its opera- 
tions, the case is local and limited, special regulations, adapted to 
the immediate locality, could only have been contemplated. State 
action upon such subjects can constitute no interference with the 
commercial power of Congress, for when that acts the State 
authority is superseded. Inaction of Congress upon these subjects 
of a local nature or operation, unlike its inaction upon matters 
affecting all the States and requiring uniformity of regulation, is 
not to be taken as a declaration that nothing shall be done in 
respect to them, but is rather to be deemed a declaration that 
for the time being and until it sees fit to act they may be regu- 
lated by State authority." 

Bridges over navigable streams, which are entirely within the 
limits of a State, are of the latter class. The local authority can 
better appreciate their necessity, and can better direct the manner 
in which they shall be used and regulated than a government at 
a distance. It is therefore, a matter of good sense and practical 
wisdom to leave their control and management with the States, 
Congress having the power at all times to interfere and super- 
sede their authority whenever they act arbitrarily and to the 
injury of commerce. 

It is, however, contended here that Congress has interfered, 
and by its legislation expressed its opinion as to the navigation of 
Chicago Eiver and its branches; that it has done so by acts 
recognizing the ordinance of 1787, and by appropriations for the 
improvement of the harbor of Chicago. 

The ordinance of 1787 for the government of the territory of 
the Ignited States northwest of the Ohio Eiver, contained in its 
fourth article a clause declaring that, "The navigable waters lead- 
ing into the Mississippi and St. Lawrence, and the carrpng places 
between them, shall be common highways and forever free, as well 
to the inhabitants of the said territory as to the citizens of 



BSCANABA COMPANY v. CHICAGO. 305 

the United States and those of any other States that may be ad- 
mitted into the confederacy, without any tax, impost, or duty 
therefor." 

The ordinance was passed July 13, 1787, one year and nearly 
eight months before the Constitution took effect; and although it 
appears to have been treated afterwards as in force in the terri- 
tory, except as modified by Congress, and by the Act of May 7, 
1800, c. 41, creating the Territory of Indiana, and by the Act of 
Feb. 3, 1809, c. 13, creating the Territory of Illinois, the rights 
and privileges granted by the ordinance are expressly secured to 
the inhabitants of those Territories; and although the act of 
April 18, 1818, c. 67, enabling the people of Illinois Territory to 
form a constitution and State government, and the resolution 
of Congress of Dec. 3, 1818, declaring the admission of the State 
into the Union, refer to the principles of the ordinance accord- 
ing to which the constitution was to be formed, its provisions 
could not control the authority and powers of the State after 
her admission. Whatever the limitation upon her powers as a 
government whilst in a territorial condition, whether from the 
ordinance of 1787 or the legislation of Congress, it ceased to have 
any operative force, except as voluntarily adopted by her, after 
she became a State of the Union. On her admission she at once 
became entitled to and possessed of all the rights of dominion and 
sovereignty which belonged to the original States. She was ad- 
mitted, and could be admitted, only on the same footing with 
them. The language of the resolution admitting her is "on an 
equal footing with the original States in all respects whatever." 
3 Stat., 536. Equality of constitutional right and power is the 
condition of all the States of the Union, old and new. Illinois, 
therefore, as was well observed by counsel, could afterwards exer- 
cise the same power over rivers within her limits that Delaware 
exercised over Blackbird Creek, and Pennsylvania over the Schuyl- 
kill River. Pollard's Lessee v. Hagan, 3 How., 212; Permoli v. 
First Municipality, Id., 589; Strader v. Graham, 10 Id., 82. 

But aside from these considerations, we do not see that the 
clause of the ordinance upon which reliance is placed materially 
affects the question before us. That clause contains two provi- 
sions: one that the navigable waters leading into the Missis- 
sippi and the St. Lawrence shall be common highways to the in- 
habitants; and the other, that they shall be forever free to them 
without any tax, impost, or duty therefor. The navigation of the 
Illinois River is free, so far as we are informed, from any tax, 
impost, or duty, and its character as a common highway is not 



306 CASES ON CONSTITUTIONAL LAW. 

affected by the fact that it is crossed by bridges. All highways, 
Avhether by land or water, are subject to such crossings as the 
public necessities and convenience may require, and their char- 
acter as such is not changed, if the crossings are allowed under 
reasonable conditions, and not so as to needlessly obstruct the 
use of the highways. In the sense in which the terms are used 
by publicists and statesmen, free navigation is consistent with 
ferries and bridges across a river for the transit of persons and 
merchandise as the necessities and convenience of the community 
may require. In Palmer v. Commissioners of Cuyahoga County 
we have a case in point. There application was made to the Cir- 
cuit Court of the United States in Ohio for an injunction to re- 
strain the erection of a drawbridge over a river in that State on 
the ground that it would obstruct the navigation of the stream 
and injure the property of the plaintiff. The application was 
founded on the provision of the fourth article of the ordinance 
mentioned. The court, which was presided over by Mr. Justice 
McLean, then having a seat on this bench, refused the injunction, 
observing that "This provision does not prevent a State from im- 
proving the navigableness of these waters, by removing obstruc- 
tions, or by dams and locks, so increasing the depth of the water 
as to extend the line of navigation. Nor does the ordinance pro- 
hibit the construction of any work on the river which the State • 
may consider important to commercial intercourse. A dam may 
be thrown over the river, provided a lock is so constructed as to 
permit boats to pass with little or no delay, and without charge. 
A temporary delay, such as passing a lock, could not be considered 
as an obstruction prohibited by the ordinance." And again: 
"A drawbridge across a navigable water is not an obstruction. As 
this would not be a work connected with the navigation of the 
river, no toll, it is supposed, could be charged for the passage of 
boats. But the obstruction would be only momentary, to raise 
the draw; and as such a work may be very important in a gen- 
eral intercourse of a community, no doubt is entertained as to the 
power of the State to make the bridge." 3 McLean, 326. The 
same observations may be made of the subsequent legislation of 
Congress declaring that navigable rivers within the Territories of 
the United States shall be deemed public highways. Sect. 9 of 
the act of May 18, 1796, c. 29; sect. 6 of the act of March 26, 
1804, c. 35. 

As to the appropriations by Congress, no money has been ex- 
pended on the improvement of the Chicago River above the first 
bridge from the lake, known as Rush Street Bridge. No bridge. 



ESCANABA COMPANY v. CHICAGO. 307 

therefore, interferes with the navigation of any portion of the 
river which has been thus improved. But, if it were otherwise, it 
is not perceived how the improvement of the navigability of the 
stream can affect the ordinary means of crossing it by ferries and 
bridges. The free navigation of a stream does not require an 
abandonment of those means. To render the action of the State 
invalid in constructing or authorizing the construction of bridges 
over one of its navigable streams, the general government must 
directly interfere so as to supersede its authority and annul what 
it has done in the matter. 

It appears from the testimony in the record that the money 
appropriated by Congress has been expended almost exclusively 
upon what is known as the outer harbor of Chicago, a part of the 
lake surrounded by breakwaters. The fact that formerly a light- 
house was erected where now Eush Street Bridge stands in no 
respect affects the question. A ferry was then used there; and 
before the construction of the bridge the site as a light-house was 
abandoned. The existing light-house is below all the bridges. The 
improvements on the river above the first bridge do not represent 
any expenditure of the government. 

From any view of this case, we see no error in the action of 
the court below, and this decree must accordingly be 

Affii'mecl. 

Note. — A municipal ordinance prohibiting from washing and 
ironing in public laundries and wash-houses within defined terri- 
torial limits, from ten o'clock at night until six in the morning, 
is a purely police regulation, within the competency of a munici- 
pality possesed of ordinary powers. Barbier v. Connolly, 113 
U. S., 27. 

The Fourteenth Amendment of the Constitution does not im- 
pair the police power of a State. lb. 

The prohibition by the State of Kansas, in its Constitution 
and laws, of the manufacture and sale within the limits of the 
State of intoxicating liquors for general use there as a beverage, 
is fairly adapted to the end of protecting the community against 
the evils which result from excessive use of ardent spirits, and is 
not subject to the objection that, under the guise of police regu- 
lations, the State is aiming to deprive the citizen of his constitu- 
tional rights. Mugler v. Kansas, 123 U. S., 623. 

See also The License Cases, 5 Howard, 504; The License Tax 
Cases, 5 Wallace, 462; Cooley v. Wardens, 12 Howard, 299; Leisy 
V. Hardin, 135 IT. S., 100; Minnesota v. Barber, 136 U. S., 313; 
and The Slaughter House Cases, 16 Wallace, 36. 



VI. GENERAL (IMPLIED) POWERS. 



Mcculloch v. the state of maeyland et al. 

4 Wheaton, 316. Decided 1819. 

[Tlie statement of facts and the second part of the opinion, 
beginning on page 425 of Wheaton, are given above, page 32. The 
first part of the opinion is given below.] 

Maeshall, C. J., delivered the opinion of the conrt. . . . 

The first question made in the eanse is, has congress power to 
incorporate a bank? 

It has been truly said, that this can scarcely be considered as 
an open question, entirely unprejudiced by the former proceed- 
ings of the nation respecting it. The principle now contested 
was introduced at a very early period of our history, has been 
recognized by many successive legislatures, and has been acted 
upon by the judicial department, in cases of peculiar delicacy, as 
a law of undoubted obligation. 

It will not be denied, that a bold and daring usurpation might 
be resisted, after an acquiescence still longer and more complete 
than this. But it is conceived that a doubtful question, one on 
which human reason may pause, and the human judgment be sus- 
pended, in the decision of which the great principles of liberty 
axe not concerned, but the respective powers of those who are 
equally the representatives of the people, are to be adjusted, if 
not put at rest by the practice of the government, ought to re- 
ceive a considerable impression from that practice. An exposi- 
tion of the constitution, deliberately established by legislative 
acts, on the faith of which an immense property has been ad- 
vanced, ought not to be lightly disregarded. 

The power now contested was exercised by the first congress 
elected under the present constitution. The bill for incorporating 
the Bank of the United States did not steal upon an unsuspecting 
legislature, and pass unobserved. Its principle was completely 

308 



Mcculloch v. state of Maryland. 309 

imderstood, and was opposed with equal zeal and ability. After 
being resisted, first in the fair and open field of debate, and after- 
wards in the executive cabinet, with as much persevering talent 
as any measure has ever experienced, and being supported by argu- 
ments which convinced minds as pure and as intelligent as this 
country can boast, it became a law. The original act was permit- 
ted to expire; but a short experience of the embarrassments to 
which the refusal to revive it exposed the government, convinced 
those who were most prejudiced against the measure of its neces- 
sity, and induced the passage of the present law. It would require 
no ordinary share of intrepidity to assert, that a measure adopted 
under these circumstances, was a bold and plain usurpation, to 
which the constitution gave no countenance. 

These observations belong to the cause; but they are not made 
under the impression that, were the question entirely new, the 
law would be found irreconcilable with the constitution. 

In discussing this question, the counsel for the State of Mary- 
land have deemed it of some importance, in the construction of 
the constitution, to consider that instrument not as emanating 
from the people, but as the act of sovereign and independent 
States. The powers of the general government, it has been said, 
are delegated by the States, who alone are truly sovereign; and 
must be exercised in subordination to the States, who alone pos- 
sess supreme dominion. 

It would be difficult to sustain this proposition. The conven- 
tion which framed the constitution was, indeed, elected by the 
state legislatures. But the instrument, when it came from their 
hands, was a mere proposal, without obligation, or pretensions 
to it. It was reported to the then existing congress of the United 
States, with a request that it might "be submitted to a conven- 
tion of delegates, chosen in each State, by the people thereof, 
under the recommendation of its legislature, for their assent and 
ratification." This mode of proceeding was adopted; and by the 
convention, by congress, and by the State legislatures, the instru- 
ment was submitted to the people. They acted upon it, in the 
only manner in which they can act safely, effectively, and wisely, 
on such a subject, by assembling in convention. It is true, they 
assembled in their several States; and where else should they 
have assembled? No political dreamer was ever wild enough to 
think of breaking down the lines which separate the States, and 
of compounding the American people into one common mass. Of 
consequence, when they act, they act in their States. But the 
measures they adopt do not, on that account, cease to be the 



310 CASES ON CONSTITUTIONAL LAW. 

measures of the people themselves, or become the measures of the 
State governments. 

From these conventions the constitution derives its whole au- 
thority. The government proceeds directly from the people; is 
"ordained and established'" in the name of the people; and is de- 
clared to be ordained, "in order to form a more perfect union, 
establish justice, insure domestic tranquillity, and secure the bless- 
ings of liberty to themselves and to their posterity." The assent 
of the States,- in their sovereign capacity, is implied in calling a 
convention, and thus submitting that instrument to the people. 
But the people were at perfect liberty to accept or reject it; and 
their act was final. It required not the affirmance, and could not 
be negatived, by the State governments. The constitution, when 
thus adopted, was of complete obligation, and bound the State 
sovereignties. 

It has been said that the people had already surrendered all 
their powers to the State sovereignties, and had nothing more to 
give. But, surely, the question whether they may resume and 
modify the powers granted to government, does not remain to be 
settlecl in this country. Much more might the legitimacy of the 
general government be doubted, had it been created by the States. 
The powers delegated to the State sovereignties were to be exer- 
cised by themselves, not by a distinct and independent sover- 
eignty, created by themselves. To the formation of a league, such 
as was the confederation, the State sovereignties were certainly 
competent. But when, "in order to form a more perfect union,"' 
it was deemed necessary to change this alliance into an effective 
government, possessing great and sovereign powers, and acting 
directly on the people, the necessity of referring it to the people, 
and of deriving its powers directly from them, was felt and 
acknowledged by all. 

The o-overnment of the Union, then (whatever mav be the influ- 
ence of this fact on the case), is emphatically and truly a govern- 
ment of the people. In form and in substance it emanates from 
them, its powers are granted by them, and are to be exercised 
directly on them, and for their benefit. 

This government is acknowledged by all to be one of enumer- 
ated powers. The principle, that it can exercise only the powers 
granted to it, would seem too apparent to have required to be 
enforced by all those arguments which its enlightened friends, 
while it was depending before the people, found it necessary to 
urge. That principle is now universally admitted. But the ques- 
tion respecting the extent of the powers actually granted, is per- 



Mcculloch v. state of Maryland. 311 

petually arising, and will probably continue to arise, as long as 
our system shall exist. 

In discussing these questions, the conflicting powers of the gen- 
eral and State governments must be brought into view, and the 
supremacy of their respective laws, when they are in opposition, 
must be settled. 
^ If any one proposition could command the universal assent of 
mankind, we might expect that it would be this: that the govern- 
ment of the Union, though limited in its powers, is supreme 
within its sphere of action. This would seem to result necessarily 
from its nature. It is the government of all; its powers are dele- 
gated by all; it represents all, and acts for all. Though any one 
State may be willing to control its operations, no State is willing 
to allow others to control them. The nation, on those subjects 
on which it can act, must necessarily bind its component parts. 
But this question is not left to mere reason: the people have, in 
express terms, decided it, by saying, "this constitution, and the 
laws of the United States, which shall be made in pursuance there- 
of," "shall be the supreme law of the land," and by requiring that 
the members of the State legislatures, and the officers of the exec- 
utive and judicial departments of the States, shall take the oath 
of fidelity to it. 

The government of the United States, then, though limited in 
its powers, is supreme; and its laws, when made in pursuance of 
the constitution, form the supreme law of the land, "an5i;hing in 
the constitution or laws of any State, to the contrary notwith- 
standing." 

Among the enumerated powers, we do not find that of estab- 
lishing a bank or creating a corporation. But there is no phrase 
in the instrument which, like the articles of confederation, ex- 
cludes incidental or implied powers; and which requires that 
everything granted shall be expressly and minutely described. 
Even the 10th amendment, which was framed for the purpose of 
quieting the excessive jealousies which had been excited, omits the 
word "expressly," and declares only that the powers "not dele- 
gated to the United States, nor prohibited to the States, are re- 
served to the States or to the people;" thus leaving the question, 
whether the particular power which may become the subject of 
contest, has been delegated to the one government, or prohibited 
to the other, to depend on a fair construction of the whole instru- 
ment. The men who drew and adopted this amendment, had ex- 
perienced the embarrassments resulting .from the insertion of this 
word in the articles of confederation, and probably omitted it to 



313 CASES ON CONSTITUTIONAL LAW. 

avoid those embarrassments. A constitution, to contain an ac- 
curate detail of all the subdivisions of which its great powers will 
admit, and of all the means by which they may be carried into 
execution, would partake of the prolixity of a legal code, and could 
scarcely be embraced by the human mind. It would probably 
never be understood by the public. Its nature, therefore, re- 
quires, that only its great outlines should be marked, its impor- 
tant objects designated, and the minor ingredients which com- 
pose those objects be deduced from the nature of the objects 
themselves. That this idea was entertained by the framers of the 
American constitution, is not only to be inferred from the nature 
of the instrument, but from the language. Why else were some 
of the limitations, found in the 9th section of the 1st article, in- 
troduced? It is also, in some degree, warranted by their having 
omitted to use any restrictive term which might prevent its re- 
ceiving a fair and just interpretation. In considering this ques- 
tion, then, we must never forget, that it is a constitution we are 
expounding. 

Although, among the enumerated powers of government, we 
do not find the word "hank," or "incorporation," we find the great 
powers to lay and collect taxes; to borrow money; to regulate 
commerce; to declare and conduct war; and to raise and sup- 
port armies and navies. The sword and the purse, all the external 
relations, and no inconsiderable portion of the industry of the 
nation, are intrusted to its government. It can never be pre- 
tended that these vast powers draw after them others of inferior 
importance, merely because they are inferior. Such an idea can 
never be advanced. But it may, with great reason, be contended, 
that a government, intrusted with such ample powers, on the due 
execution of which the happiness and prosperity of the nation so 
vitally depends, must also be intrusted with ample means for their 
execution. The power being given, it is the interest of the nation 
to facilitate its execution. It can never be their interest, and 
cannot be presumed to have been their intention, to clog and 
embarrass its execution by withholding the most appropriate 
means. Throughout this vast republic, from the St. Croix to the 
Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be 
collected and expended, armies are to be marched and supported. 
The exigencies of the nation may require, that the treasure raised 
in the Xorth should be transported to the South, that raised in 
the East conveyed to the Wes.t, or that this order should be re- 
versed. Is that construction of the constitution to be preferred 
which would render these operations difficult, hazardous, and ex- 



Mcculloch v. state of Maryland. 313 

pensive? Can we adopt that constniction (unless the words im- 
periously require it) which would impute to the framers of that 
instrumend;, when granting these powers for the public good, the 
intention of impeding their exercise by withholding a choice of 
means? If, indeed, such be the mandate of the constitution, we 
have only to obey; but that instrument does not profess to 
enumerate the means by which the powers it confers may be exe- 
cuted; nor does it prohibit the creation of a coii^oration, if the 
existence of such a being be essential to the beneficial exercise of 
those powers. It is, then, the subject of fair inquiry, how far such 
means may be employed. 

It is not denied, that the powers given to the government imply 
the ordinary means of execution. That, for example, of raising 
revenue, and applying it to national purposes, is admitted to imply 
the power of conveying money from place to place, as the exigen- 
cies of the nation may require, and of employing the usual means' 
of conveyance. But it is denied that the government has its 
choice of means; or, that it may employ the most convenient 
means, if, to employ them, it be necessary to erect a corporation. 

On what foundation does this argument rest? On this alone: 
The power of creating a corporation, is one appertaining to sov- 
ereignty, and is not expressly conferred on Congress. This is true. 
But all legislative powers appertain to sovereignty. The original 
power of giving the law on any subject whatever, is a sovereign 
power; and if the government of the Union is restrained from 
creating a corporation, as a means for performing its functions, 
on the single reason that the creation of a corporation is an act 
of sovereignty; if the sufficiency of this reason be acknowledged, 
there Avould be some difficulty in sustaining the authority of con- 
gress to pass other laws for the accomplishment of the same ob- 
jects. 

The government which has a right to do an act, and has im- 
posed on it the duty of performing that act, must, according to 
the dictates of reason, be allowed to select the means; and those 
who contend that it may not select any appropriate means, that 
one particular mode of effecting the object is excepted, take upon 
themselves the burden of establishing that exception. 

The creation of a corporation, it is said, appertains to sover- 
eignty. This is admitted. But to what portion of sovereignty does 
it appertain? Does it belong to one more than to another? In 
America, the powers of sovereignty are divided between the gov- 
ernment of the Union, and those of the States. They are each 
sovereign, with respect to the objects committed to it, and neither 



314 CASES ON CONSTITUTIONAL LAW. 

sovereign with, resjoect to the objects committed to the other. We 
cannot comprehend that train of reasoning which would maintain, 
that the extent of power gTanted by the people is to be ascertained, 
not by the nature and terms of the grant, but by its date. Some 
state constitutions were formed before, some since that of the 
United States. "We cannot believe that their relation to each other 
is in any degree dependent upon this circumstance. Their respect- 
ive powers must, we think, be precisely the same as if they had been 
formed at the same time. Had they been formed at the same time, 
and had the people conferred on the general government the power 
contained in the constitution, and on the States the whole re- 
siduum of power, would it have been asserted that the government 
of the Union was not sovereign with respect to those objects 
which were intrusted to it, in relation to which its laws were de- 
clared to be supreme? If this could not have been asserted, we 
cannot well comprehend the process of reasoning which main- 
tains, that a power appertaining to sovereignty cannot be con- 
nected with that vast portion of it which is granted to the general 
government, so far as it is calculated to subserve the legitimate 
objects of that government. The power of creating a corpora- 
tion, though appertaining to sovereignty, is not, like the power 
of making war, or levying taxes, or of regulating commerce, a 
great substantive and independent power, which cannot be im- 
plied as incidental to other powers, or used as a means of executing 
them. It is never the end for which other powers are exercised, 
but a means by which other objects are accomplished. No con- 
tributions are made to charity for the sake of an incorporation, 
but a corporation is created to administer the charity; no seminary 
of learning is instituted in order to be incorporated, but the cor- 
porate character is conferred to subserve the purposes of educa- 
tion, No city was ever built with the sole object of being incor- 
porated, but is incorporated as affording the best means of being 
well governed. The power of creating a corporation is never used 
for its own sake, but for the puropse of effecting something else. 
No sufficient reason is, therefore, perceived, why it may not pass 
as incidental to those powers which are expressly given, if it be a 
direct mode of executing them. 

But the constitution of the United States has not left the right 
of congress to employ the necessary means, for the execution of 
the " powers conferred on the government, to general reasoning. 
To its enumeration of powers is added that of making "all laws 
which shall be necessary and proper, for carrying into execution 
the foregoing powers, and all other powers vested by this constitu- 



Mcculloch v. state of Maryland. 315 

tion, in the government of the United States, or in any depart- 
ment thereof." 

Tlie counsel for the State of Maryland have urged various argu- 
ments, to prove that this clause, though in terms a grant of power, 
is not so in effect; hut is really restrictive of the general right, 
which might otherwise be implied, of selecting means for execut- 
ing the enumerated powers. 

In support of this proposition, they have found it necessary to 
contend, that this clause was inserted for the purpose of confer- 
ring on congress the power of making laws. That, without it, 
doubts might be entertained, whether congress could exercise its 
powers in the form of legislation. 

But could this be the object for which it was inserted? A 
government is created by the people, having legislative, executive, 
and judicial powers. Its legislative powers are vested in a con- 
gress, which is to consist of a senate and house of representatives. 
Each house may determine the rule of its proceedings; and it is 
declared that every bill which shall have passed both houses, 
■shall, before it becomes a law, be presented to the President of 
the United States. The 7th secticyi describes the course of pro- 
ceedings, by which a bill shall become a law; and, then, the 8th 
section enumerates the powers of congress. Could it be necessar}" 
to say, that a legislature should exercise legislative powers, in the 
shape of legislation? After allowing each house to prescribe its 
own course of proceeding, after describing the manner in which 
a bill should become a law, would it have entered into the mind 
of a single member of the convention, that an express power to 
make laws was necessarj' to enable the legislature to make them? 
That a legislature, endowed with legislative powers, can legislate, 
is a proposition too self-evident to have been questioned. 

But the argument on which most reliance is placed, is drawn 
from the peculiar language of this clause. Congress is not em- 
powered by it to make all laws, which may have relation to the 
powers conferred on the government, but only such as may be 
"necessary and proper" for carrying them into execution. The 
word "necessary" is considered as controlling the whole sentence, 
and as limiting the right to pass laws for the execution of the 
granted powers, to such as are indispensable, and without which 
the power would be nugatory. That it excludes the choice of 
means, and leaves to congress, in each case, that only which is 
most direct and simple. 

Is it true, that this is the sense in which the word "necessary" 
is always used? Does it always import an absolute physical neces- 



316 CASES ON CONSTITUTIONAL LAW. 

sity, so strong, that one thing, to which another may be termed 
necessary, cannot exist without that other? We think it does not. 
If reference be had to its use, in the common affairs of the world, 
or in approved authors, we find tliat it frequently imports no more 
than that one thing is convenient, or useful, or essential to an- 
other. To employ the means necessary to an end, is generally 
understood as employing any means calculated to produce the end, 
and not as being confined to those single means, without which 
the end would be entirely unattainable. Such is the character 
of human language, that no word conveys to the mind, in all situ- 
ations, one single definite idea; and nothing is more common 
than to use words in a figurative sense. Almost all, compositions 
contain words, which, taken in their rigorous sense, would convey 
a meaning different from that which is obviously intended. It is 
essential to just construction, that many words which import 
something excessive, should be understood in a more mitigated 
sense — ^in that sense which common usage justifies. The word 
"necessary" is of this description. It has not a fixed character 
peculiar to itself. It admits of all degrees of comparison; and is 
often connected with words, which increase or diminish the im- 
pression the mind receives of the urgency it imports. A thing 
may be necessary, very necessary, absolutely or indispensably nec- 
essary. To no mind would the same idea be conveyed, by these 
several phrases. This comment on the word is well illustrated, 
by the passage cited at the bar, from the 10th section of the 1st 
article of the constitution. It is, we think, impossible to com- 
pare the sentence which prohibits a State from laying "imposts, 
or duties on imports or exports, except what may be absolutely 
necessary for executing its inspection laws," with that which au- 
thorizes congress "to make all laws which shall be necessary and 
proper for carrying into execution" the powers of the general gov- 
ernment, without feeling a conviction that the convention under- 
stood itself to change materially the meaning of the word "neces- 
sary" by prefixing the word "absolutely." This word, then, like 
others, is used in various senses; and, in its construction, the sub- 
ject, the context, the intention of the person using them, are all 
to be taken into view. 

Let this be done in the case under consideration. The subject 
is the execution of those great powers on which the welfare of a 
nation essentially depends. It must have been the intention of 
those who gave these powers, to insure as far as human prudence 
could insure, their beneficial execution. This could not be done 
by confining the choice of means to such narrow limits as not to 



Mcculloch v. state of Maryland. 317 

leave it in the power of congress to adopt any which might be 
appropriate, and which were conducive to the end. This pro- 
vision is made in a constitution intended to endure for ages to 
come, and, consequently, to be adapted to the various crises of 
human affairs. To have prescribed the means by which govern- 
ment should, in all future time, execute its powers, would have 
been to change, entirely, the character of the instrument, and 
give it the properties of a legal code. It would have been an un- 
wise attempt to provide, by immutable rules, for exigencies which, 
if foreseen at all, must have been seen dimly, and which can be 
best provided for as they occur. To have declared that the best 
means shall not be used, but those alone without which the power 
given would be nugatory, would have been to deprive the legis- 
lature of the capacity to avail itself of experience, to exercise its 
reason, and to accommodate its legislation to circumstances. If 
we apply this principle of construction to any of the powers of the 
government, we shall find it so pernicious in its operation that we 
shall be compelled to discard it. The powers vested in congress 
may certainly be carried into execution, without prescribing an 
oath of office. The power to exact this security for the faithful 
performance of duty, is not given, nor is it indispensably necessary. 
The different departments may be established; taxes may be im- 
posed and collected; armies and navies may be raised and main- 
tained; and money may be borrowed, without requiring an oath 
of office. It might be argued, with as much plausibility, as other 
incidental powers have been assailed, that the convention was not 
unmindful of this subject. The oath which might be exacted — 
that of fidelity to the constitution — is prescribed, and no other 
can be required. Yet, he would be charged with insanity who 
should contend, that the legislature might not superadd to the 
oath directed by the constitution, such other oath of office as its 
wisdom might suggest. 

So, with respect to the whole penal code of the United States. 
Whence arises the power to punish in cases not prescribed by the 
constitution? All admit that the government may, legitimately, 
punish any violation of its laws; and yet, this is not among the 
enumerated powers of congress. The right to enforce the ob- 
servance of law, by punishing its infraction, might be denied with 
the more plausibility, because it is expressly given in some cases. 
Congress is empowered "to provide for the punishment of coun- 
terfeiting the securities and current coin of the United States," 
and "to define and punish piracies and felonies committed on the 
high seas, and offenses against the law of nations." The several 



318 CASES ON CONSTITUTIONAL LAW. 

powers of congress may esist, in a very imperfect state to be 
sure, but they may exist and be carried into execution, althougli 
no punishment should be inflicted in cases where the right to 
punish is not expressly given. 

Take, for example, the power "to establish post-offices and 
poet-roads." This power is executed by the single act of making 
the establishment. But from this has been inferred the power 
and duty of carrying the mail along the post-road, from one post- 
office to another. And, from this implied power, has again been 
inferred the right to punish those who steal letters from the post- 
office, or rob the mail. It may be said, with some plausibility, that 
the right to carry the mail, and to punish those who rob it, is not 
indispensably necessary to the establishment of a post-office and 
post-road. This right is, indeed, essential to the beneficial exer- 
cise of the power, but not indispensably necessary to its existence. 
So, of the punishment of the crimes of stealing or falsifying a 
record or process of a court of the United States, or of perjury in 
such court. To punish these offenses is certainly conducive to 
the due administration of justice. But courts may exist, and may 
decide the causes brought before them, though such crimes escape 
punishment. 

The baneful influence of this narrow construction on all the 
operations of the government, and the absolute impracticability 
of maintaining it without rendering the government incompetent 
to its great objects, might be illustrated by numerous examples 
drawn from the constitution, and from our laws. The good sense 
of the public has pronounced, without hesitation, that the power 
of punishment appertains to sovereignty, and may be exercised 
whenever the sovereign has a right to act, as incidental to his 
constitutional powers. It is a means for carrying into execution 
all sovereign powers, and may be used, although not indispensa- 
bly necessary. It is a right incidental to the power, and conducive 
to its beneficial exercise. 

If this limited construction of the word "necessary" must be 
abandoned in order to punish, whence is derived the rule which 
would reinstate it, when the government would carry its powers 
into execution by means not vindictive in their nature? If the 
word "necessary" means "needful," "requisite," "essential," "con- 
ducive to," in order to let in the power of punishment for the in- 
fraction of law, why is it not equally comprehensive when required 
to authorize the use of means which facilitate the execution of the 
powers of government without the infliction of punishment? 

In ascertaining the sense in which the word "necessary" is used 



Mcculloch v. state of Maryland. 319 

in this clause of the constitution, we may derive some aid from 
that with which it is associated. Congress shall have power "to 
make all laws which shall be necessary and proper to carry into 
execution" the powers of the government. If the word "neces- 
sary" was used in that strict and rigorous sense for which the 
counsel for the State of Maryland contend, it would be an ex- 
traordinary departure from the usual course of the human mind, 
as exhibited in composition, to add a word, the only possible effect 
of which is to qualify that strict and rigorous meaning; to pre- 
sent to the mind the idea of some choice of means of legislation 
not straitened and compressed within the narrow limits for which 
gentlemen contend. 

But the argument which most conclusively demonstrates the 
error of the construction contended for by the counsel for the State 
of Maryland, is founded on the intention of the convention, as 
manifested in the whole clause. To waste time and argument in 
proving that, without it, congress might carry its powers into exe- 
cution, would be not much less idle than to hold a lighted taper 
to the sun. As little can it be required to prove, that in the ab- 
sence of this clause, congress would have some choice of means. 
That it might employ those which, in its judgment, would most 
advantageously effect the object to be accomplished. That any 
means adapted to the end, any means which tended directly to 
the execution of the constitutional powers of the government, 
were in themselves constitutional. This clause, as construed by 
the State of Maryland, would abridge and almost annihilate this 
useful and necessary right of the legislature to select its means. 
That this could not be intended, is, we should think, had it not 
been already controverted, too apparent for controversy. We 
think so for the following reasons: — 

1. The clause is placed among the powers of congress, not 
among the limitations on those powers. 

2, Its terms purport to enlarge, not to diminish the powers 
vested in the government. It purports to be an additional power, 
not a restriction on those already granted. ISTo reason has been 
or can be assigned, for thus concealing an intention to narrow the 
discretion of the national legislature, under words which purport 
to enlarge it. The framers of the constitution wished its adoption, 
and well knew that it would be endangered by its strength, not by 
its weakness. Had they been capable of using language which 
would convey to the eye one idea, and after deep reflection, im- 
press on the mind another, they would rather have disguised the 
grant of power, than its limitation. If then, their intention had 



320 CASES ON CONSTITUTIONAL LAW. 

been, by this clause, to restrain the free nse of means which might 
otherwise have been implied, that intention would have been in- 
serted in another place, and would have been expressed in terms 
resembling these: "In carrying into execution the foregoing pow- 
ers, and all others," &c., "no laws shall be passed but such as are 
necessary and proper."' Had the intention been to make this 
clause restrictive, it would unquestionably have been so in form 
as well as in effect. 

The result of the most careful and attentive consideration be- 
stowed upon this clause is, that if it does not enlarge, it cannot 
be construed to restrain the powers of congress, or to impair the 
right of the legislature to exercise its best judgment in the selec- 
tion of measures, to carry into execution the constitutional powers 
of the government. If no other motive for its insertion can be 
suggested, a sufficient one is found in the desire to remove all 
doubts respecting the right to legislate on that vast mass of inci- 
dental powers which must be involved in the constitution, if that 
instrument be not a splendid bauble. 

"We admit, as all must admit, that the powers of the govern- 
ment are limited, and that its limits are not to be transcended. 
But we think the sound construction of the constitution must 
allow to the national legislature that discretion, with respect to 
the means by which the powers it confers are to be carried into 
execution, which will enable that body to perform the high duties 
assigned to it, in the manner most beneficial to the people. Let 
the end be legitimate, let it be within the scope of the constitu- 
tion, and all means which are appropriate, which are plainly 
adapted to that end, which are not prohibited, but consist with 
the letter and spirit of the constitution, are constitutional. 

That a corporation must be considered as a means not less 
usual, not of higher dignity, not more requiring a particular speci- 
fication than other means, has been sufficiently proved. If we 
look to the origin of corporations, to the manner in which they 
have been framed in that government, from which we have de- 
rived most of our legal principles and ideas, or to the uses to 
which they have been applied, we find no reason to suppose that 
a constitution, omitting, and wisely omitting, to enumerate all the 
means for carrying into execution the great powers vested in gov- 
ernment, ought to have specified this. Had it been intended to 
grant this power as one which should be distinct and independent, 
to be exercised in any case whatever, it would have found a place 
among the enumerated powers of the government. But being 
considered merely as a means, to be employed only for the pur- 



Mcculloch v. state of Maryland. 331 

pose of carrying into execution the given powers, there could be 
no motive for particularly mentioning it. 

The propriety of this remai'k would seem to be generally 
acknowledged by the universal acquiescence in the construction 
which has been uniformly put on the 3d section of the 4th article 
of the constitution. The power to "make all needful rules and 
regulations respecting the territory or other property belonging 
to tlie United States," is not more comprehensive, than the power 
"to make all laws which shall be necessary and proper for carrying 
into execution" the powers of the government. Yet all admit the 
constitutionality of a territorial government, which is a corporate 
body. 

If a corporation may be employed indiscriminately with other 
means to cany into execution the powers of the government, no 
particular reason can be assigned for excluding the use of a bank, 
if required for its fiscal operations. To use one, must be within 
the discretion of congress, if it be an appropriate mode of execut- 
ing the powers of government. That it is a convenient, a useful, 
and essential instxmnent in the prosecution of its fiscal operations, 
is not now a subject of controversy. All those who have been 
concerned in the administration of our finances, have concuiTed 
in representing its importance and necessity; and so strongly 
have they been felt, that statesmen of the first class, whose pre- 
vious opinions against it had been confirmed by every circum- 
stance which can fix the human judgment, have yielded those 
opinions to the exigencies of the nation. Under the confederation, 
congress justifying the measure l)y its necessity, transcended, per- 
haps, its powers to obtain the advantage of a bank; and our own 
legislation attests the universal conviction of the utility of this 
measure. The time has passed away when it can be necessary to 
enter into any discussion in order to prove the importance of this 
instrument, as a means to effect the legitimate objects of the gov- 
ernment. 

But were its necessity less apparent, none can deny its being an 
appropriate measure; and if it is, the degree of its necessity, as 
has been very justly observed, is to be discussed in another place. 
Should congress, in the execution of its powers, adopt measures 
which are prohibited by the constitution; or should congTcss, 
under the pretext of executing its powers, pass laws for the ac- 
complishment of objects not intrusted to the government, it would 
become the painful duty of this tribunal, should a case requiring 
such a decision come before it, to say that such an act was not 
the law of the land. But where the law is not prohibited, and is 
21 



323 CASES ON CONSTITUTIONAL LAW. 

really calculated to effect any of the objects intrusted to the gov- 
ernment, to undertake here to inquire into the degree of its neces- 
sity, ^'ould be to pass the line which circumscribes the judicial 
department, and to tread on legislative ground. This court dis- 
claims all pretensions to such a power. 

After this declaration, it can scarcely be necessary to say, that 
the existence of state banks can have no possible influence on the 
c[uestion. Xq trace is to be found in the constitution of an inten- 
tion to create a dependence of the government of the Union on 
those of the States, for the execution of the great powers assigned 
to it. Its means are adequate to its ends; and on those means 
alone was it expected to rely for the accomplishment of its ends. 
To impose on it the necessity of resorting to means which it can- 
not control, which another government may furnish or withhold, 
would render its course precarious, the result of its measures un- 
certain, and create a dependence on other governments, which 
might disappoint its most important designs, and is incompatible 
with the language of the constitution. But were it otherwise, the 
choice of means implies a right to choose a national bank in prefer- 
ence to state banks, and congress alone can make the election. 

After the most deliberate consideration, it is the unanimous and 
decided opinion of this court, that the act to incorporate the Bank 
of the United States is a law made in pursuance of the constitu- 
tion, and is a part of the supreme law of the land. 

The branches, proceeding from the same stock, and being con- 
ducive to the complete accomplishment of the object, are equally 
constitutional. It would have been unwise to locate them in the 
charter, and it would be unnecessarily inconvenient to employ the 
legislative power in making those subordinate arrangements. The 
gTcat duties of the bank are prescribed; those duties require 
branches, and the bank itself vaaj, we think, be safely trusted 
with the selection of places where those branches shall be fixed; 
reserving always to the government the ris-ht to require that a 
branch shall be located where it may be deemed necessary. 

It being the opinion of the court that the act incorporating the 
bank is constitutional; and that the power of establishing a 
branch in the State of Maryland might be properly exercised by 
the bank itself, we proceed to inquire: — 

2. "Whether the State of Mar3dand may, without violating the 
constitution, tax that branch? . . . 

We are unanimously of opinion, that the law passed by the 
legislature of Maryland, imposing a tax on the Bank of the United 
States, is unconstitutional and void. . . , 



Mcculloch v. state of Maryland. 323 

XoTE. — The most important discussions of the implied powers 
of Congress are those found in 'the legal tender cases. See Knox 
V. Lee, 12 Wallace, 457, and Juilliard v. Greenman, 110 U. S., 
421. See also James Wilson's Considerations on the Power to 
Incorporate the Bank of North America, Works (Andrews' edi- 
tion), Ij 549-577. Although a discussion of the inherent or im- 
plied powers of the Confederation, its reasoning is applicable to 
the implied powers of the government under the Constitution. 

Bryce says of Marshall's opinion in this case (American Com- 
monwealth, 3d Ed., I, 379, note), "This is really a working-out of 
one of the points of Hamilton's famous argument in favor of the 
constitutionality of a United States bank: 'Every power vested 
in a government is in its nature sovereign, and includes by iorce 
of the term a right to employ all the means requisite and fairly 
applicable to the attainment of the ends of such power, and which 
are not precluded by restrictions and exceptions specified in the 
Constitution.' Works (Lodge's Ed.), vol. iii, p. 181." 

"It is unnecessary for me to point out . . . the great influ- 
ence which that decision of the Supreme Court has exercised over 
the material and financial prosperity of this country. Had the 
decision been, that there existed in this government no power to 
create a national currency, or to provide for a national banking 
system, the disastrous effects upon the business prosperity of the 
people can hardly be imagined. Those who are old enough to 
have gone through the State bank and wildcat systems of paper 
money prevalent a few years since in this country, can bear feeling 
testimony to the value of a so-called national bank system." 
Miller, Lectures on the Constitution of the United States, 391. 



VII. EXECUTIVE POWERS. 



In Ex PAETE Gaeland, 4 Wallace, 333 (1866), the validity of 
an act of Congress requiring every person admitted to practice 
before a United States court to take an oath that he had never 
borne arms against the United States nor held office under any 
authority hostile to the United States was called in question. Mr. 
Justice Field said with reference to the nature of the pardoning 
power of the President, 

"The Constitution provides that the President '^hall have power 
to grant reprieves and pardons for offenses against the United 
States, except in cases of impeachment.'^ 

"The power thus conferred is unlimited, with the exception 
stated. It extends to every offense known to the law, and may be 
exercised at any time after its commission, either before legal 
proceedings are taken, or during their pendency, or after convic- 
tion and judgment. This power of the President is not subject 
to legislative control. Congress can neither limit the effect of his 
pardon, nor exclude from its exercise any class of offenders. The 
benign prerogative of mercy imposed in him cannot be fettered 
by any legislative restrictions. 

"Such being the case, the inquiry arises as to the effect and 
operation of a pardon, and on this point all the authorities concur. 
A pardon reaches both the punishment prescribed for the offense 
and the guilt of the offender; and when the pardon is full, it re- 
leases the punishment and blots out of existence the guilt, so that 
in the eye of the law the offender is as innocent as if he had 
never committed the offense. If granted before conviction*, it pre- 
vents any of the penalties and disabilities consequent upon con- 
viction from attaching; if granted after conviction, it removes 
the penalties and disabilities, and restores him to all his civil 
rights; it makes him, as it were, a new man, and gives him a new 
credit and capacity. 

"There is only this limitation to its operation: it does not re- 

1 Article II, § 2. 
324 



IN RE NEAGLE. 325 

store offices forfeited, or property or interests vested in others in 
consequence of the conviction and judgment.- 

"The pardon produced by the petition is a full pardon 'for 
all offenses by him committed, arising from participation, direct or 
implied, in the Eebellion,' and is subject to certain conditions 
which have been complied with. The effect of this pardon is to 
relieve the petitioner from all penalties and disabilities attached 
to the offense of treason, committed by his participation in the 
Eebellion. So far as that offense is concerned, he is thus placed 
beyond the reach of punishment of any kind. But to exclude 
him, by reason of that offense, from continuing in the enjoyment 
of a previously acquired right, is to enforce a punishment for that 
offense notwithstanding the pardon. If such exclusion can be 
effected by the exaction of an expurgatory oath covering the of- 
fense, the pardon may be avoided, and that accomplished indi- 
rectly which cannot be reached by direct legislation. It is not 
within the constitutional power of Congress thus to inflict pun- 
ishment beyond the reach of executive clemency. From the pe- 
titioner, therefore, the oath required by the act of January 2-4th, 
1865, could not be exacted, even if that act were not subject to 
any other objection than the one thus stated." 



In ee NEAGLE. 
135 U. S., 1. Decided 1890. 

Me. Justice Millee, on behalf of the court, stated the case as 
follows: — 

This was an appeal by Cunningham, sheriff of the county of 
San Joaquin, in the State of California, from a judgment of the 
Circuit Court of the United States for the Northern District of 
California, discharging David Neagle from the custody of said 
sheriff, who held him a prisoner on a charge of murder. 

On the 16th day of August, 1889, there was presented to Judge 
Sawyer, the Circuit Judge of the United States for the Ninth Cir- 
cuit, embracing the Northern District of California., a petition 
signed David Neagle, deputy United States marshal, by A. L. 
Farrish on his behalf. This petition represented that the said 
Farrish was a deputy marshal duly appointed for the Northern 

24 Blackstone's Commentaries. Pardon; Hawkins, book 2, c. 37, 
402; 6 Baeon's Abridgment, tit. §§ 34 and 54. 



3-26 CASES ON CONSTITUTIONAL LAW. 

District of California by J. C. Franks, who was tlie marshal of that 
district. It further alleged that David Neagle was, at the time of 
the occurrences recited in the petition and at the time of filing it, 
a duly appointed and acting deputy United States marshal for the 
same district. It then proceeded to state that said IsTeagle was 
imprisoned, confined, and restrained of his liberty in the county 
Jail in San Joaquin County, in the State of California, by Thomas 
Cunningham, sheriff of said county, upon a charge of murder, 
under a warrant of arrest, a copy of which was annexed to the 
petition. The warrant was as follows: — 

"In the Justice's Court of Stockton Township. 

"State of California, 



SB' 

County of San Joaquin, 

"The People of the State of California to any sheriff, constable, 
marshal, or policeman of said State or of the county of San 
Joaquin: 

"Information on oath having been this day laid before me by 
Sarah A. Terry that the crime of murder, a felony, has been com- 
mitted within said county of San Joaquin on the l-ith day of Au- 
gust, A. D. 1889, in this, that one David S. Terry, a human being 
then and there being, was wilfully, unlawfully, feloniously, and 
with malice aforethought shot, killed, and murdered, and accus- 
ing Stephen J. Field and David ISTeagle thereof: You are there- 
fore commanded forthwith to arrest the above-named Stephen J. 
Field^ and David K"eagle and bring them before me, at my office, 
in the city of Stockton, or, in ease of my absence or inability to 
act, before the nearest and most accessible magistrate in the 
county. 

"Dated at Stockton this 14th day of August, a. d. 1889. 

"H. V. J. Swain, 
"Justice of the Peace. 

3 The Governor of California, on burning disgrace to the State un- 
learning that a warrant had been less disavowed." The Attorney- 
issued for the arrest of Mr. Justice General as promptly responded by 
Field, promptly wrote to the At- advising the District Attorney that 
torney-General of the State, urg- there was "no evidence to impli- 
ing "the propriety of at once in- cate Justice Field in said shoot- 
structing the District Attorney of ing," and that "public justice de- 
San Joaquin County to dismiss the mands that the charge against him 
unwarranted proceeding against be dismsised;" which was accord- 
him," as his arrest "would be a ingly done. 



IN RE NEAGLE. 327 

"The defendant, David Xeagie, having been brought before me 
on this warrant, is committed for examination to the sheriff of 
San Joaquin County, California. 

"Dated Augi^st 15, 1889. H. V. J. Swaix, 

"Justice of the Peace." 

The petition then recited the circumstances of a rencontre 
between said Neagle and David S. Terry, in which the latter was 
instantly killed by two shots from a revolver in the hands of 
the former. The circumstances of this encounter and of what led 
to it will be considered with more particularity hereafter. The 
main allegation of this petition was that ISTeagle, as United States 
deputy marshal, acting under the orders of Marshal Franks, and 
in pursuance of instructions from the Attorney-General of the 
United States, had, in consequence of an anticipated attempt at 
violence on the part of Terry against the Honorable Stephen J. 
Field, a justice of the Supreme Court of the United States, been 
in attendance upon said justice, and was sitting by his side at a 
breakfast table when a murderous assault was made by Terry on 
Judge Field, and in defense of the life of the judge the homicide 
was committed for which Neagle was held by Cunningham. The 
allegation was very distinct that Justice Field was engaged in the 
discharge of his duties as circuit justice of the United States for 
that ^circuit, having held court at Los Angeles, one of the places 
at which the court is by law held, and, having left that court, was 
on his way to San Francisco for the purpose of holding the Circuit 
Court at that place. The allegation was also very full that ISTeagle 
was directed by Marshal Franks to accompany him for the purpose 
of protecting him, and that these orders of Franks were given in an- 
ticipation of the assault which actvially occurred. It was also stated, 
in more general terms, that Marshal Neagle, in killing Terry 
under the circumstances, was in the discharge of his duty as an 
officer of the United States, and was not, therefore, guilty of 
a murder, and that his imprisonment under the warrant held 
by Sheriff Cunningham was in violation of the laws and Consti- 
tution of the United States, and that he was in custody for an 
act done in pursuance of the laws of the United States. This 
petition being sworn to by Farrish, and presented to Judge Saw- 
yer, he made the following order: 

"Let a writ of habeas corpus issue in pursuance of the prayer 
of the within petition, returnable before the United States Cir- 
cuit Court for the Northern District of California. 

"Sawyer, Circuit Judge." 



338 CASES ON CONSTITUTIONAL LAW. 

Tlie writ was accordingly issued and delivered to Cimningliam,. 
wlio made the following return: — 

"CorNTY OF Sax Joaquin", State of California, 
"Sheriff's Office. 
"To the honorable Circuit Court of the United States for the 
IsTorthern District of California: 
"I hereby certify and return that before the coining to me of 
the annexed writ of habeas corpus the said David Xeagle was 
committed to my custody, and is detained by me by virtue of a 
warrant issued out of the justice's court of Stockton township, 
State of California, county of San Joaquin, and by the indorse- 
ment made upon said warrant. Copy of said warrant and indorse- 
ment is annexed hereto and made a part of this return. ISTever- 
theless, I have the body of the said David Neagle before the hon- 
orable court, as I am in the said writ commanded. 
"August 17, 1889. Thomas Cunxixgham, 

"Sheriff San Joaquin County, California." 

Various pleadings and amended pleadings were made which do 
not tend much to the elucidation of the matter before us. Cun- 
ningham filed a demurrer to the petition for the writ of habeas 
corpus, and !N'eagle tiled a traverse to the return of the sheriff, 
which was accompanied by exhibits, the substance of which'will 
be hereafter considered when the case comes to be examined upon 
its facts. 

The hearing in the Circuit Court was had before Circuit Judge 
Sawyer and District Judge Sabin. The sheriff, Cunningham, was 
represented by G. A. Johnson, Attorney-General of the State of 
California, and other counsel. A large body of testimony, docu- 
mentary and otherwise, was submitted to the court, on which, 
after a full consideration of the subject, the court made the 
following order: 

"In the Matter of David ISTeagie, on habeas corpus. 

"In the above-entitled matter, the court, having heard the tes- 
timony introduced on behalf of the petitioner, none having been 
offered for the respondent, and also the arguments of the counsel 
for petitioner and respondent, and it appearing to the court that 
the allegations of the petitioner in his amended answer or traverse 
to the return of the sheriff of San Joaquin County, respondent 
herein, are true, and that the prisoner is in custody for an act 
done in pursuance of a law of the Tnited States, and in custody 



IN RE NEAGLE. 3^39 

in violation of tlie Constitution and laws of the United States, it 
is therefore ordered that petitioner be, and he is hereby, discharged 
from custody." 

From that order an appeal was allowed which brought the case 
to this court, acompanied by a voluminous record of all the 
matters which were before the court on the hearing. . . . 

Mr. Justice Miller, after stating the case as above, delivered 
'the opinion of the court. 

If it be true, as stated in the order of the court discharging 
the prisoner, that he was held "in custody for an act done in 
pursuance of a law of the Ignited States, and in custody in viola- 
tion of the Constitution and laws of the United States," there 
does not seem to be any doubt that, under the statute on that 
subject, he was properly discharged by the Circuit Court . . . 

[Here follows a history of the events leading up to the death 
of Terry.] 

These are the material circumstances produced in evidence be- 
fore the Circuit Court on the hearing of this habeas corpus case. 
It is but a short sketch of a history which is given in over five 
hundred pages in the record, but we think it is sufficient to enable 
us to apply the law of the case to the question before us. With- 
out a more minute discussion of this testimony, it produces upon 
us the conviction of a settled purpose on the part of Terry and 
his wife, amounting to a conspiracy, to murder Justice Field. And 
we are quite sure that if JSTeagle had been merely a brother or a 
friend of Judge Field, traveling with him, and aware of all the pre- 
vious relations of Terry to the judge, — as he was, — of his bitter 
animosity, his declared purpose to have revenge even to the point 
of killing him, he would have been justified in what he did in 
defense of Mr. Justice Field's life, and possibly of his own. 

But such a justification would be a proper subject for consid- 
eration on a trial of the case for murder in the courts of the State 
of California, and there exists no authority in the courts of the 
United States to discharge the prisoner while held in custody by 
the State authorities for this offense, unless there be found in aid 
of the defense of the prisoner some element of power and authority 
asserted under the government of the United States. 

This element is said to be found in the facts that Mr. Justice 
Field, when attacked, was in the immediate discharge of his duty 
as judge of the Circuit Courts of the United States within Cali- 
fornia; that the assault upon him grew out of the animosity of 
Terry and wife, arising out of the previous discharge of his duty 



330 CASES ON CONSTITUTIONAL LAW. 

as circuit justice in the case for wliich they were committed for 
contempt of court; and that the deputy marshal of the United 
States, who killed Terry in defense of Field's life, was charged 
with a duty under the law of the United States to protect Field 
from 'the violence which Terry was inflicting, and which was in- 
tended to lead to Field's death. 

To the inquiry whether this proposition is sustained by law and 
the facts which we have recited, we now address ourselves. . . . 

We have no doubt that Mr. Justice Field when attacked by 
Terry was engaged in the discharge of his duties as Circuit Justice 
of the jSTinth Circuit, and was entitled to all the protection under 
those circumstances which the law could give him. 

It is urged, however, that there exists no statute authorizing 
any such protection as that which Neagle was instructed to give 
Judge Field in the present case, and indeed no protection what- 
ever against a vindictive or malicious assault growing out of the 
faithful discharge of his official duties, and that the language 
of section 753 of the Eevised Statutes, that the party seeking the 
benefit of the writ of habeas corpus must in this connection show 
that he is "in custody for an act done or omitted in pursuance 
of a law of the United Sates,'"' makes it necessary that upon this 
occasion it should be shown that the act for which ISTeagle is im- 
prisoned was done by virtue of an act of Congress. It is not sup- 
posed that any special act of CongTess exists which authorizes the 
marshals or deputy marshals of the United States in express terms 
to accompany the judges of the Supreme Court through their 
circuits, and act as a body-guard to them, to defend them against 
malicious assaults against their persons. But we are of opinion 
that this view of the statute is an unwarranted restriction of the 
meaning of a law designed to extend in a liberal manner the bene- 
fit of the writ of habeas corpus to persons imprisoned for the 
performance of their duty. And we are satisfied that if it was the 
duty of Neagle, under the circumstances, a duty which could only 
arise under the laws of the United States, to defend Mr. Justice 
Field from a murderous attack upon him, he brings himself within 
the meaning of the section we have recited. This view of the 
subject is confirmed by the alternative provision, that he must be 
in custody "for an act done or omitted in pursuance of a law of 
the United States or of an order, process, or decree of a court 
or judge thereof, or is in custody in violation of the Constitution 
or of a law or treaty of the United States." 

In the view we take of the Constitution of the United States, 
any obligation fairly and properly inferrible from that instru- 



IN RE NEAGLE. 331 

ment, or any duty of the marshal to be derived from the general 
scope of his duties under the laws of the United States, is "a law" 
within the meaning of this phrase. It would be a great reproach 
to the system of government of the United States, declared to be 
within its sphere sovereign and supreme, if there is to be found 
within the domain of its powers no means of protecting the Judges, 
in the conscientious and faithful discharge of their duties, from 
the malice and hatred of those upon whom their judgments may 
operate unfavorably. 

It has in modern times become apparent that the physical health 
of the community is more efficiently promoted by hygienic and 
preventive means, than by the skill which is applied to the cure 
of disease after it has become fully developed. So also the law, 
which is intended to prevent crime, in its general spread among 
the community, by regulations, police organization, and otherwise, 
which are adapted for the protection of the lives and property of 
citizens, for the dispersion of mobs, for the arrest of thieves and 
assassins, for the watch which is kept over the community, as well 
as over this class of people, is more efficient than punishment 
of crimes after they have been committed. 

If a person in the situation of Judge Field could have no other 
guarantee of his personal safety, while engaged in the conscien- 
tious discharge of a disagreeable duty, than the fact that if he 
was murdered his murderer would be subject to the laws of a 
State and by those laws could be punished, the security would be 
very insufficient. The plan which Terry and wife had in mind 
of insulting him and assaulting him and drawing him into a de- 
fensive physical contest, in the course of which they would slay 
him, shows the little value of such remedies. We do not believe 
that the government of the United States is thus inefficient, or 
that its Constitution and laws have left the high officers of the 
government so defenseless and unprotected. . . . [Here are 
given citations from ex parte Siebold, 100 U. S., 371, 394, and 
from Tennessee v. Davis, 100 U. S., 257, 262.] 

Where, then, are we to look for the protection which we have 
shown Judge Field was entitled to when engaged in the discharge 
of his official duties? Not to the courts of the United States; 
because, as has been more than once said in this court, in the 
division of the powers of government between the three great de- 
partments, executive, legislative and judicial, the judicial is the 
weakest for the purposes of self-protection and for the enforce- 
ment of the powers which it exercises. The ministerial officers 
through whom its commands must be executed are marshals of 



333 CASES ON CONSTITUTIONAL LAW. 

the United States, and belong emphatically to the executive de- 
partment of the government. They are appointed by the Presi- 
dent, with the advice and consent of the Senate. They are remov- 
able from office at his pleasure. They are subjected by act of 
Congress to the supervision and control of the Department of 
Justice, in the hands of one of the cabinet officers of the Presi- 
dent, and their compensation is provided by acts of Congress. 
The same may be said of the district attorneys of the United 
States, who prosecute and defend the claims of the government in 
the courts. 

The legislative branch of the government can only protect 
the Judicial officers by the enactment of laws for that purpose, 
and the argument we are now combating assumes that no such 
law has been passed by Congress. 

If we turn to the executive department of the government, we 
find a very different condition of affairs. The Constitution, sec- 
tion 3, Article 2, declares that the President "shall take care that 
the laws be faithfully executed," and he is provided with the means 
of fulfilling this obligation by his authority to commission all 
the officers of the United States, and, by and with the advice and 
consent of the Senate, to appoint the most important of them 
and to fill vacancies. He is declared to be commander-in-chief 
of the army and navy of the United States. The duties which are 
thus imposed upon him he is further enabled to perform by the 
recognition in the Constitution, and the creation by acts of Con- 
gress, of executive departments, which have varied in number 
from four to five to seven or eight, the heads of which are famil- 
iarly called cabinet ministers. These aid him in the performance 
of the great duties of his office, and represent him in a thousand 
acts to which it can hardly be supposed his personal attention is 
called, and thus he is enabled to fulfill the duty of his great de- 
partment, expressed in the phrase that "he shall take care that 
the laws be faithfully executed." 

Is this duty limited to the enforcement of acts of Congress or 
of treaties of the United States according to their express terms, 
or does it include the rights, duties and obligations growing out 
of the Constitution itself, our international relations, and all the 
protection implied by the nature of the government under the 
Constitution ? 

One of the most remarkable episodes in the history of our for- 
eign relations, and which has become an attractive historical inci- 
dent, is the case of Martin Koszta,a native of Hungary, who, though 
not fully a naturalized citizen of the United States, had in due form 
of law made his declaration of intention to become a citizen. While 



IN RE NEAGLE. 333 

in Smyrna he was seized by command of the Austrian consul- 
general at that place, and carried on board the Hussar, an Aus- 
trian vessel, where he was held in close confinement. Captain 
Ingraham, in command of the American sloop-of-war, St. Louis, 
arriving in port at that critical period, and ascertaining that 
Koszta had with him his naturalization papere, demanded his sur- 
render to him, and was compelled to train his guns upon the Aus- 
trian vessel before his demands were complied with. It was, 
however, to prevent bloodshed, agreed that Koszta should be 
placed in the hands of the French consul subject to the result of 
diplomatic negotiations between Austria and the United States. 
The celebrated correspondence between Mr. Marcy, Secretary of 
State, and Chevalier Hiilsemann, the Austrian minister at Wash- 
ington, which arose out of this affair and resulted in the release 
and restoration to liberty of Koszta, attracted a great deal of 
public attention, and the position assumed by Mr. Marcy met the 
approval of the country and of Congress, who voted a gold medal 
to Captain Ingraham for his conduct in the affair. Upon what 
act of Congress then existing can any one lay his finger in sup- 
port of the action of our government in this matter? 

So, if the President or the Postmaster-General is advised that 
the mails of the United States, possibly carrying treasure, are lia- 
ble to be robbed and the mail carriers assaulted and murdered in 
any particular region of country, who can doubt the authority of 
the President or of one of the executive departments under him 
to make an order for the protection of the mail and of the per- 
sons and lives of its carriers, by doing ex'actly what was done in 
the case of Mr. Justice Field, namely, providing a sufficient guard, 
whether it be by soldiers of the army or by marshals of the United 
States, with a posse comitatus properly armed and equipped, to 
secure the safe performance of the duty of carrying the mail 
wherever it may be intended to go? 

The United States is the owner of millions of acres of valuable 
public land, and has been the owner of much more which it has 
sold. Some of these lands owe a large part of their value to the 
forests which grow upon them. These forests are liable to depre- 
dations by people living in the neighborhood, known as timber 
thieves, who make a living by cutting and selling such timber, 
and who are trespassers. But until quite recently, even if there 
be one now, there was no statute authorizing any preventive 
measures for the protection of this valuable public property. Has 
the President no authority to place guards upon the public terri- 
tory to protect its timber? No authority to seize the timber when 



334 CASES ON CONSTITUTIONAL. LAW. 

cut and found upon the ground? Has he no power to take any 
measures to protect this vast domain?. Fortunately we find this 
question answered by this court in the case of Wells v. Nickles, 
104 U. S., 444. That was a case in which a class of men appointed 
by local land officers, under instructions from the Secretary of 
the Interior, having found a large quantity of this timber cut 
down from the forests of the United States and lying where it 
was cut, seized it. The question of the title to this property com- 
ing in controversy between Wells and Nickles, it became essential 
to inquire into the authority of these timber agents of the govern- 
ment thus to seize the timber cut by trespassers on its lands. The 
court said: "The effort we have made to ascertain and fix the 
authority of these timber agents by any positive provision of law 
has been unsuccessful." But the court, notwithstanding there was 
no special statute for it, held that the Department of the Interior, 
acting under the idea of protecting from depredation timber on 
the lands of the government, had gradually come to assert the 
right to seize Mdiat is cut and taken away from them wherever it 
can be traced, and in aid of this tiie registers and receivers of the 
Land Office had, by instructions from the Secretary of the Inte- 
rior, been constituted agents of the United States for these pur- 
poses, with power to appoint special agents under themselves. And 
the court upheld the authority of the Secretary of the Interior 
to make these rules and regulations for the protection of the public 
lands. 

One of the cases in this court in which this question was pre- 
sented in the most imposing form is that of United States v. San 
Jacinto Tin Company, 125 U. S., 273, 279, 280. In this case, a 
suit was brought in the name of the United States, by order of 
the Attorney General, to set aside a patent which had been issued 
for a large body of valuable land, on the ground that it was ob- 
tained from the government by fraud and deceit practiced upon 
its officers. A preliminary question was raised by counsel for the 
defendant, which was earnestly insisted upon, as to the right of 
the Attorney General or any other officer of the government to 
institute such a suit in the absence of any act of Congress author- 
izing it. It was conceded that there was no express authority 
given to the Attorney General to institute that particular suit or 
any suit of that class. The question was one of very great interest, 
and was very ably argued both in the court below and in this 
court. The response of this court to that suggestion conceded 
that in the acts of Congress establishing the Department of Jus- 
tice and defining the duties of the Attorney General there was 



IN RE NEAGLE, 335 

no such express authority, and it was said that there was also no 
express authority to him to bring suits . against debtors of the 
government upon bonds, or to begin criminal prosecutions, or to 
institute criminal proceedings in any of the cases in which the 
United States was plaintiff, yet he was invested with the gen- 
eral superintendence of all such suits. It was further said: "If 
the United States, in any particular case, has a just cause for call- 
ing upon the judiciary of the country, in any of its courts, for 
relief by setting aside or annulling any of its contracts, its obli- 
gations, or its most solemn instruments, the question of the appeal 
to the judicial tribunals of the country must primarily be decided 
by the Attorney General of the United States. That such a power 
should exist somewhere, and that the United States should not 
be more helpless in relieving itself of frauds, impostures, and de- 
ceptions, than the private individual is hardly open to argument. 
. . . There must, then, be an officer or officers of the govern- 
ment to determine when the United States shall sue, to decide 
for what it shall sue, and to be responsible that such suits shall be 
brought in appropriate cases. The attorneys of the United States 
in every judicial district are officers of this character, and they 
are by statute under the immediate supervision and control of the 
Attorney-General. How, then, can it be argued that if the United 
States has been deceived, entrapped, or defrauded, into the mak- 
ing, under the forms of law, of an instrument which injuriously 
aft'ects its rights of property, or other rights, it cannot bring a 
suit to avoid the effect of such instrument, thus fraudulently 
obtained, without a special act of Congress in each case, or with- 
out some special authority applica])le to this class of cases?" The 
same question was raised in the earlier case of United States v. 
Hughes, 11 How., 552, and decided the same way. 

We cannot doubt the power of the President to take measures 
for the protection of a judge of one of the courts of the United 
States, who, while in the discharge of the duties of his office, is 
threatened with a personal attack which may probably result in 
his death, and we think it clear that where this protection is to be 
afforded through the civil power, the Department of Justice is the 
proper one to set in motion the necessary means of protection. 
The correspondence already recited in this opinion between the 
marshal of the Northern District of California, and the Attorney- 
General, and the district attorney of the United States for that 
district, although prescribing no very specific mode of affording 
this protection by the iittorney-General, is sufficient, we think, 
to warrant the marshal in taking the steps which he did take, in 



336 CASES ON CONSTITUTIONAL LAW. 

making the ^^rovision which he did make, for the protection and 
defense of Mr. Justice .Field. 

But there is positive law investing the marshals and their depu- 
ties with powers which not only justify what Marshal iSTeagle did 
in this matter, but which imposed it upon him as a duty. In 
chapter fourteen of the Eevised Statutes of the United States, 
which is devoted to the appointment and duties of the district 
attorneys, marshals, and clerks of the courts of the United States, 
section 788 declares: 

"The marshals and their deputies shall have, in each State, the 
same powers, in executing the laws of the United States, as the 
sheriffs and their deputies in such State may have, by law, in 
executing the laws thereof." 

If therefore, a sheriff of the State of California was authorized 
to do in regard to the laws of California what Xeagle did, that is, 
if he is authorized to keep the peace, to protect a judge from 
assault and murder, then jSTeagie was authorized to do the same 
thing in reference to the laws of the United States. . . . 

That there is a peace of the United States; that a man assaulting 
a judge of the United States while in the discharge of his duties 
violates that peace; that in such case the marshal of the United 
States stands in the same relation to the peace of the United State? 
which the sheriff of the county does to the peace of the State of 
California; are questions too clear to need argimient to prove 
them. That it would be the duty of a sheriff, if one had 
been present at this assault by Terry upon Judge Field, 
to prevent this breach of the peace, to prevent this 
assault, to prevent the murder which was contemplated by it, can- 
not be doubted. And if, in performing this duty, it became nec- 
essary for the protection of Judge Field, or of himself, to kill 
Terry, in a case where, like this, it was evidently a question of 
the choice of who should be killed, the assailant and violater of 
the law and disturber of the peace, or the unoffending man who 
was in his power, there can be no question of the authority of the 
sheriff to have killed Terry. So the marshal of the United States, 
charged with the duty of protecting and guarding the judge of 
the United States court against this special assault upon his per- 
son and his life, being present at the critical moment, when prompt 
action was necessary, found it to be his duty, a duty which he had 
no liberty to refuse to perform, to take the steps which resulted 
in Terry's death. This duty was imposed on him by the section 
of the Eevised Statutes which we have cited, in connection with 
the powers conferred by the State of California upon its peace 



IN RE NEAGLE. 337 

officers, which become, by this statute, in proper cases, transferred 
as duties to the marslials of the United States. . . . 

The result at which we have arrived upon this examination is, 
that in tlie protection of the person and the life of Mr. Justice 
Field while in the discharge of his official duties, Neagle was au- 
thorized to resist the attack of Terry upon him; that Neagle was 
correct in the belief that without prompt action on his part the 
assault of Terry upon the judge would have ended in the death 
of the latter; that such being his well-founded belief, he was jus- 
tified in taking the life of Terry, as the only means of preventing 
the death of the man who was intended to be his victim; that in 
taking the life of Terry, under the circumstances, he was acting 
under the authority of the law of the United States, and was jus- 
tified in so doing; and that he is not liable to answer in the 
courts of California on account of his part in that transaction. 

We therefore affirm the judgment of the Circuit Court authoriz- 
ing his discharge from the custody of the sheriff of San Joaquin 
County. 

[Me. Justice Lamar delivered a dissenting opinion in which 
Chief Justice Fuller concurred.] 

Note. — The recent case of Parsons v. United States, 167 U. S., 
324, (1897), discusses the President's power of removal, but does 
not determine the constitutional question involved. The opinion 
is valuable for its statement of the legislative, executive, and judi- 
cial history of the question. 



VIII. WAR.— MARTIAL LAW. 



MAKTIN V. MOTT. 

12 Wheaton, 1^. Decided 1827. 
The case is stated in the opinion of the court. . . . 

Stoey, J,, delivered the opinion of the court. 

This is a writ of error to the judgment of the court for the trial 
of impeachments and the correction of errors of the State of New 
York, being the highest court of that State, and is brought here 
in virtue of the 25th section of the Judiciary Act of 1789,^ e. 20. 
The original action was a replevin for certain goods and chattels, 
to which the original defendant put in an avowry, and to that 
avowry there was a demurrer, assigning nineteen distinct and 
special causes of demurrer. Upon a joinder in demurrer, the su- 
preme court of the State gave judgment against the avowant; and 
that judgment was affirmed by the high court to which the pres- 
ent writ of error is addressed. 

The avowry, in substance, asserts a justification of the taking 
of the goods and chattels to satisfy a fine and forfeiture imposed 
upon the original plaintiff by a court-martial, for a failure to enter 
the service of the United States as a militiaman, when thereto 
required by the President of the United States, in pursuance of 
the act of the 28th of February, 1795. It is argued that this 
avowiy is defective, both in substance and form; and it will be 
our business to discuss the most material of these objections; and 
as to others, of which no particular notice is taken, it is to be 
understood that the court are of opinion that they are either 
unfounded in fact or in law, and do not require any separate 
examination. 

For the more clear and exact consideration of this subject, it 
may be necessary to refer to the constitution of the United States, 
and some of the provisions of the act of 1795. The constitution 
declares that congress shall have power "to provide for calling 
forth the militia, to execute the laws of the Union, suppress in- 
surrections, and repel invasions;" and also "to provide for organ- 
1 1 Stats, at Large, 85. 
338 



MARTIN V. MOTT. 339 

izing, arming, and disci]ilining the militia, and for governing such 
])art of them as may be employed in the service of the United 
States." In pursuance of this authority, the act of 1795 has pro- 
vided, "that whenever the United States shall be invaded, or be 
in imminent danger of invasion from any foreign nation or Indian 
tribe, it shall be lawful for the President of the United States to 
call forth such number of the militia of the State or States most 
convenient to the place of danger, or scene of action, as he may 
judge necessary to repel such invasion, and to issue his order for 
that purpose to such officer or officers of the militia as he shall 
think proper." And like provisions are made for the other cases 
stated in the constitution. It has not been denied here that the 
act of 1795 is within the constitutional authority of congress, or 
that congress may not lawfully provide for cases of imminent 
danger of invasion, as well as for cases where an invasion has actu- 
ally taken place. In our opinion there is no ground for a doubt 
on this point, even if it had been relied on, for the power to pro- 
vide for repelling invasions includes the power to provide against 
the attempt and danger of invasion, as the necessary and proper 
means to effectuate the object. One of the best means to repel 
invasion is to provide the requisite force for action before the 
invader himself has reached the soil. 

The power thus confided by congress to the President, is, doubt- 
less of a very high and delicate nature. A free people are naturally 
jealous of the exercise of military power; and the power to call 
the militia into actual service is certainly felt to be one of no 
ordinary magnitude. But it is not a power which can be executed 
without a correspondent responsibility. It is, in its terms, a 
limited power, confined to cases of actual invasion, or of imminent 
danger of invasion. If it be a limited power, the question arises, 
by whom is the exigency to be judged of and decided? Is the 
President the sole and exclusive judge whether the exigency has 
arisen, or is it to be considered as an open question, upon which 
every officer to whom the orders of the President are addressed, 
may decide for himself, and equally open to be contested by every 
militia-man who shall refuse to obey the orders of the President? 
We are all of the opinion that the authority to decide whether 
the exigency has arisen belongs exclusively to the President, and 
that his decision is conclusive upon all other persons. We think 
that this construction necessarily results from the nature of the 
]5ower itself, and from the manifest object contemplated by the 
act of congress. The power itself is to be exercised upon sudden 
emergencies, upon great occasions of state, and under circum- 



340 CASES ON CONSTITUTIONAL LAW. 

stances which may be vital to the existence of the Union. A 
prompt and unhesitating obedience to orders is indispensable to 
the complete attainment of the object. The service is a mili- 
tary service^ and the command of a military nature; and in such 
cases, every delay, and every obstacle to an efficient and imme- 
diate compliance, necessarily tend to jeopard the public interests. 
While subordinate officers or soldiers are pausing to consider 
whether they ought to obey, or are scrupulously weighing the 
evidence of the facts upon which the commander-in-chief exer- 
cises the right to demand their services, tlie hostile enterprise may 
be accomplished without the means of resistance. If "the power 
of regulating the militia, and of commanding its services in times 
of insurrection and invasion, are (as it has been emphatically said 
they are) natural incidents to the duties of superintending the 
common defense, and of watching over the internal peace of the 
confederacy,"^ these powers must be so construed as to the modes 
of their exercise as not to defeat the great end in view. If a 
superior officer has a right to contest the orders of the President 
upon his own doubts as to the exigency having arisen, it must be 
equally the right of every inferior officer and soldier; and any 
act done by any person in furtherance of such orders would sub- 
ject him to responsibility in a civil suit, in which his defense 
must- finally rest upon his ability to establish the facts by com- 
petent proofs. Such a course would be subversive of all discipline, 
and expose the best-disposed officers to the chances of ruinous 
litigation. Besides, in many instances, the evidence upon which 
the President might decide that there is imminent danger of in- 
vasion, might be of a nature not constituting strict technical proof, 
or the disclosure of the evidence might reveal important secrets of 
state, which the public interest, and even safety, might imperi- 
ously demand to be kept in concealment. 

If we look at the language of the act of 1795, every con- 
clusion drawn from the nature of the power itself is strongly 
fortified. The words are, "whenever the United States shall be 
invaded, or be in imminent danger of invasion, &c,, it shall be 
lawful for the President, &c., to call forth such number of the 
militia, &c., as he may Judge necessary to repel such invasion." 
The power itself is confided to the Executive of the Union, to 
him who is, by the constitution, "the commander-in-chief of the 
militia, when called into the actual service of the United States," 
whose duty it is to "take care that the laws be faithfully executed," 

1 The Federalist, No. 29. 



MARTIN V. MOTT. 341 

and whose responsibility for an honest discharge of his official 
obligations is secured by the highest sanctions. He is neces- 
sarily constituted the judge of the existence of the exigency in 
the first instance, and is bound to act according to his belief of 
the facts. If he does so act, and decides to call forth the militia, 
his orders for this purpose are in strict conformity with the provi- 
sions of the law; and it would seem to follow as a necessary con- 
sequence that every act done by a subordinate officer, in obedi- 
ence to such orders, is equally justifiable. The law contemplates 
that, under such circumstances, orders shall be given to carry the 
power into effect; and it cannot therefore be a correct inference 
that any other person has a just right to disobey them. The law 
does not provide for any appeal from the judgment of the Presi- 
dent, or for any right in subordinate officers to review his deci- 
sion, and in effect defeat it. Whenever a statute gives a discre- 
tionary power to any person, to be exercised by him upon his 
own opinion of certain facts, it is a sound rule of construction, 
that the statute constitutes him the sole and exclusive judge of 
the existence of those facts. And in the present case, we are all 
of opinion that such is the true construction of the act of 1795. It 
is no answer that such a power may be abused, for there is no 
power which is not susceptible of abuse. The remedy for this, 
as well as for all other official misconduct, if it should occur, is to 
be found in the constitution itself. In a free government, the 
danger must be remote, since in addition to the high qualities 
which the Executive must be presumed to possess, of public vir- 
tue and honest devotion to the public interests, the frequency of 
elections, and the watchfulness of the representatives of the na- 
tion, carry with them all the checks which can be useful to guard 
against usurpation or wanton tyranny. , . . [Here follows 
a reference to the New York case of Vanderheyden v. Young, 11 
Johns. Eep., 150.] 

But it is now contended, as it was contended in that case, that 
notwithstanding the judgment of the President is conclusive as to 
the existence of the exigency, and may be given in evidence as 
conclusive proof thereof, yet that the avowry is fatally defective, 
because it omits to aver that the fact did exist. The argu- 
ment is that the power confided to the President is a limited power, 
and can be exercised only in the cases pointed out in the statute, 
and therefore it is necessary to aver the facts which bring the 
exercise within the purview of the statute. In short, the same 
principles are sought to be applied to the delegation and exercise 
of this power intrusted to the Executive of the nation for great 



349 CASES ON CONSTITUTIONAL LAW. 

political purposes, as might be applied to the humblest officer 
in the government, acting upon the most narrow and special au- 
thority. It is the opinion of the court, that this objection can 
not be maintained. When the President exercises an authority 
confided to him by law, the presumption is, that it is exercised in 
pursuance of law. Every public officer is presumed to act in 
obedience to his duty, until the contrary is shown; and a fortiori, 
this presumption ought; to be favorably applied to the chief mag- 
istrate of the Union. It is not necessary to aver, that the act 
which he may rightfully do, was so done. If the fact of the exist- 
ence of the exigency were averred, it would be traversable, and of 
course might be passed upon by a jury; and thus the legality 
of the orders of the President would depend, not on his own judg- 
ment of the facts, but upon the finding of those facts upon the 
proofs submitted to a jury. This view of the objection is pre- 
cisely the same which was acted upon by the supreme court of 
]^ew York, in the case already referred to, and, in the opinion of 
this court, with entire legal correctness. . . . 

Upon the whole, it is the opinion of the court that the judg- 
ment of the court for the trial of impeachments and the correc- 
tion of errors ought to be reversed; and that the cause be re- 
manded to the same court, with directions to cause a judgment 
to be entered upon the pleadings in favor of the avowant. 



THE PEIZE CASES. 

THE BEIG AMY WAEWICK. THE SCHOONEE CEEN- 

SHAW. THE SCHOONEE BEILLIANTE. THE 

BAEK HIAWATHA. 

2 Black, 635. Decided 1863. 
[The facts are sufficiently stated in the opinion of the court.] 

Me. Justice Geiek. There are certain propositions of law 
which must necessarily affect the ultimate decision of these cases, 
and many others, which it will be proper to discuss and decide 
before we notice the special facts peculiar to each. 

They are, 1st. Had the President a right to institute a block- 
ade of ports in possession of persons in armed rebellion against 



THE PRIZE CASES. 343 

the government, on the princij^les of international law, as known 
and acknowledged among civilized States? 

2d. Was the property of persons domiciled or residing within 
those States a proper suhject of capture on the sea as "enemies' 
property"? 

I. Xeutrals have a right to challenge the existence of a block- 
ade de facto, and also the authority of the party exercising the 
right to institute it. They have a right to enter the ports of a 
friendly nation for the purposes of trade and commerce, but are 
bound to recognize the rights of a belligerent engaged in actual 
war, to use this mode of coercion, for the purpose of subduing 
the enemy. 

That a blockade de facto actually existed, and was formally de- 
clared and notified by the President on the 27th and 30th of April, 
1861, is an admitted fact in these cases. 

That the President, as the Executive Chief of the Government 
and Commander-in-Chief of the Army and Navy, was the proper 
person to make such notification, has not been, and cannot be 
disputed. 

The right of prize and capture has its origin in the jus belli, and 
is governed and adjudged under the law of nations. To legiti- 
mate the capture of a neutral vessel or property on the high seas, 
a war must exist de facto, and the neutral must have a knowledge 
or notice of the intention of one of the parties belligerent to use 
this mode of coercion against a port, city, or territory, in posses- 
sion of the other. 

Let us inquire whether^ at the time this blockade was instituted, 
a state of war existed which would justify a resort to these means 
of subduing the hostile force. 

War has been well defined to be, "That state in which a nation 
prosecutes its right by force." 

The parties belligerent in a public war are independent nations. 
But it is not necessary to constitute war, that both parties should 
be acknowledged as independent nations or sovereign States. A 
war may exist where one of the belligerents claims sovereign rights 
as against the other. 

Insurrection against a government may or may not culminate 
in an organized rebellion, but a civil war always begins by in- 
surrection against the lawful authority of the Government. A 
civil war is never solemnly declared; it becomes such by its acci- 
dents, — the number, power, and organization of the persons who 
originate and carry it on. Wlien the party in rebellion occupy 
and hold in a hostile manner a certain portion of territory; have 



344 CASES ON CONSTITUTIONAL LAW. 

declared their independence; have cast off their allegiance; have 
organized armies; have commenced hostilities against their for- 
mer sovereign, the world acknowledges them as belligerents, and 
the contest a war. They claim to be in arms to establish their 
liberty and independence, in order to become a sovereign State, 
while the sovereign party treats them as insurgents and rebels who 
owe allegiance, and who should be punished with death for their 
treason. 

The laws of war, as established among nations, have their foun- 
dation in reason, and all tend to mitigate the cruelties and misery 
produced by the scourge of war. Hence the parties to a civil 
war usually concede to each other belligerent rights. They ex- 
change prisoners, and adopt the other courtesies and rules com- 
mon to public or national Avars. 

"A civil war," says Vattel, "breaks the bands of society and 
government, or at least suspends their force and effect; it pro- 
duces in the nation two independent parties, who consider each 
other as enemies, and acknowledge no common judge. Those two 
parties, therefore, must necessarily be considered as constituting, 
at least for a time, two separate bodies, two distinct societies. 
Having no common superior to judge between them, they stand 
in precisely the same predicament as two nations who engage in 
a contest and have recourse to arms. 

"This being the case, it is very evident that the common laws 
of war — those maxims of humanity, moderation, and honor — 
ought to be observed by both parties in every civil war. Should 
the sovereign conceive he has a right to hang up his prisoners 
as rebels, the opposite party will make reprisals, &c., &c.; the war 
will become cruel, horrible, and every day more destructive to the 
nation." 

As a civil war is never publicly proclaimed, eo nomine, against 
insurgents, its actual existence is a fact in our domestic history 
which the Court is bound to notice and know. 

The true test of its existence, as found in the writings of the 
sages of the common law, may be thus summarily stated: "When 
the regular course of justice is interrupted by revolt, rebellion, or 
insurrection, so that the Courts of Justice cannot be kept open, 
civil war exists and hostilities may be prosecuted on the same foot- 
ing as if those opposing the Government were foreign enemies 
invading the land." 

By the Constitution, Congress alone has the power to declare 
a national or foreign war. It cannot declare war against a State, 
or any number of States, by virtue of any clause in the Consti- 



THE PRIZE CASES. 345 

tiition. The Constitution confers on the President the whole 
Executive j^ower. He is bound to take care tliat tlie laws be 
faithfully executed. He is Commander-in-Chief of the Army and 
Navy of the United States, and of the militia of the several States 
when called into the actual service of the United Stales. He has 
no power to initiate or declare a war either against a foreign 
nation or a domestic State, But by the Acts of Congress of Febru- 
ary 28, 1795, and 3d of March, 1807, he is authorized to call out 
the militia and use the military and naval forces of the United 
States in case of invasion by foreign nations, and to suppress 
insurrection against the government of a State or of the United 
States. 

If a war be made by invasion of a foreign nation, the President 
is not only authorized but bound to resist force by force. He does 
not initiate the war, but is bound to accept the challenge without 
waiting for any special legislative authority. And whether the 
hostile party be a foreign invader, or States organized in rebel- 
lion, it is none the less a war, although the declaration of it be 
"unilateral." Lord Stowell (1 Dodson, 247) observes, "It is not 
the less a war on that account, for war may exist without a decla- 
ration on either side. It is so laid down by the best writers on 
the law of nations. A declaration of war by one country only, 
is not a mere .challenge to be accepted or refused at pleasure by 
the other." 

The battles of Palo Alto and Kesaoa de la Palma had been 
fought before the passage of the Act of Congress of May 13, 1846, 
which recognized "a state of war as existing by the act of the 
Republic of Mexico." This act not only provided for the future 
prosecution of the war, but was itself a vindication and ratifica- 
tion of the Act of the President in accepting the challenge with- 
out a previous formal declaration of war by Congress. 

This greatest of civil wars was not gradually developed by pop- 
ular commotion, tumultuous assemblies, or local unorganized in- 
surrections. However long may have been its previous concep- 
tion, it nevertheless sprung forth suddenly from the parent brain, 
a Minerva in the full panoply of war. The President was bound 
to meet it in the shape it presented itself, without waiting for 
Congress to baptize it with a name; and no name given to it by 
him or them could change the fact. 

It is not the less a civil war, with belligerent parties in hostile 
aiTay, because it may be called an "insurrection" by one side, and 
the insurgents be considered as rebels or traitors. It is not neces- 
sary that the independence of the revolted province or State be 



346 CASES ON CONSTITUTIONAL LAW. 

acknowledged in order to constitute it a party belligerent in a war 
according to the law of nations. Foreign nations acknowledge 
it as war by a declaration of neutrality. The condition of neutral- 
ity cannot exist unless there be two belKsferent parties. In the 
case of the Santissima Trinidad (7 Wheaton, 337), this court say: 
"The Government of the United States has recognized the exist- 
ence of a civil war between Spain and her colonies, and has avowed 
her determination to remain neutral between the parties. Each 
party is therefore deemed by us a belligerent nation, having, so 
far as concerns us, the sovereign rights of war." (See also 3 Binn., 
252.) 

As soon as the news of the attack on Fort Sumter, and the or- 
ganization of a government by the seceding States, assuming to 
act as belligerents, could become known in Europe, to wit, on the 
13th of May, 1861, the Queen of England issued her proclamation 
of neutrality, "recognizing hostilities as existing between the Gov- 
ernment of the United States of America and certain States styl- 
ing themselves the Confederate States of America." This was 
immediately follovi'ed by similar declarations or silent acquies- 
cence by other nations. 

After such an official recognition by the sovereign, a citizen 
of a foreign State is estopped to deny the existence of a war with 
all its consequences as regards neutrals. They cannot ask a Court 
to affect a technical ignorance of the existence of a war, which all 
the world acknowledges to be the greatest civil war known in the 
history of the human race, and thus cripple the arm of the Gov- 
ernment and paralyze its power by subtle definitions and ingeni- 
ous sophisms. 

The law of nations is also called the law of nature; it is founded 
on the common consent as well as the common sense of the world. 
It contains no such anomalous doctrine as that which this Court 
are now for the first time desired to pronounce, to wit: That in- 
surgents vv'ho have risen in rebellion against their sovereign, ex- 
pelled her courts, established a revolutionary government, organ- 
ized armies, and commenced hostilities, are not enemies because 
they are traitors; and. a war levied on the government by traitors, 
in order to dismember and destroy it, is not a war because it is 
an "insurrection." 

Whether the President, in fulfilling his duties as Commander- 
in-chief in suppressing an insurrection, has met with such armed 
hostile resistance, and a civil war of such alarming proportions, 
as will compel him to accord to them the character of belligerents, 
is a question to be decided by him, and this Court must be gov- 



THE PRIZE CASES. 347 

erned by the decisions and acts of the political department of the 
Government to which this power was intrusted. "He must deter- 
mine what degree of force the crisis demands." The proclamation 
of blockade is itself official and conclusive evidence to the Court 
that a state of war existed which demanded and authorized a re- 
course to such a measure, under the circumstances peculiar to the 
dase. 

The correspondence of Lord Lyons with the Secretary of State 
admits the fact and concludes the question. 

If it were necessary to the technical existence of a war, that it 
should have a legislative sanction, we find it in almost every act 
passed at the extraordinary session of the Legislature of 1861, 
which was wholly employed in enacting laws to en'able the Gov- 
ernment to prosecute the war with vigor and efficiency. And 
finally, in 18G1, we find Congress "ex majore cantela''' and in an- 
ticipation of such astute objections, passing an act "approving, 
legalizing, and making valid all the acts, proclamations, and orders 
of the President, &c,, as if they had been issued and done under 
the previous express authority and direction of the Congress of 
the United States." 

Without admitting that such an act was necessary under the 
circumstances, it is plain that if the President had in any manner 
assumed powers which it was necessary should have the authority 
or sanction of Congress, that on the well known principle of law, 
'^omnis ratihahitio retrotraliitur et mandato equiparahir/' this 
ratification has operated to perfectly cure the defect. In the case 
of Brown vs. United States (8 Cr., 131, 132, 133), Mr. Justice 
Story treats of this subject, and cites numerous authorities to 
which we may refer to prove this position, and concludes, "I am 
perfectly satisfied that no subject can commence hostilities or 
capture property of an enemy, when the sovereign has prohibited 
it. But suppose he did, I would ask if the sovereign may not 
ratify his -proceedings, and thus by a retroactive operation give 
validity to them?" 

Although Mr. Justice Story dissented from the majority of the 
Court on the whole case, the doctrine stated by him on this point 
is correct and fully substantiated by authority. 

The objection made to this act of ratification, that it is ex post 
facto, and therefore unconstitutional and void, might possibly 
have some weight on the trial of an indictment in a criminal 
Court. But precedents from that source cannot be received as 
authoritative in a tribunal administering public and international 
law. 



348 CASES ON CONSTITUTIONAL LAW. 

On this first question therefore we are of the opinion that the 
President had a right, jure helU, to institute a blockade of ports 
in possession of the States in rebellion, which neutrals are bound 
.to regard. 

II. We come now to the consideration of the second question. 
What is included in the term "enemies' propert}^"'? 

Is the property of all persons residing within the territory of 
the States now in rebellion, captured on the high seas, to be 
treated as "enemies' property" whether the owner be in arms 
against the Government or not? 

The right of one belligerent not only to coerce the other by 
direct force, but also to cripple his resources by the seizure or de- 
struction of his property, is a necessary result of a state of war. 
Money and wealth, the products of agriculture and commerce, aie 
said to be the sinews of war, and as necessary in its conduct as 
numbers and physical forc^. Hence it is, that the laws of war 
recognize the right of a belligerent to cut these sinews of the 
power of the enemy, by capturing his property on the high seas. 

The appellants contend that the term "enemy" is properly ap- 
plicable to those only who are subjects or citizens of a foreign 
State at war with our own. They quote from tiie pages of the 
common law, which say, "that persons who wage war against the 
King may be of two kinds, subjects or citizens. The former are 
not proper enemies^, but rebels and traitors; the latter are those 
that come properly under the name of enemies." 

They insist, moreover, that the President himself, in his procla- 
mation, admits that great numbers of the persons residing within 
the territories in possession of the insurgent government are loyal 
in their feelings, and forced by compulsion and the violence of 
the rebellious and revolutionary party and its "de facto govern- 
ment" to submit to their laws and assist in their scheme of revolu- 
tion; that the acts of the usurping government cannot legally 
sever the bond of their allegiance; they have, therefore, a co-rela- 
tive right to claim the protection of the government for their per- 
sons and property, and to be treated as loyal citizens, till legally 
convicted of having renounced their allegiance and made war 
against the Government by treasonabty resisting its laws. 

They contend, also, that insurrection is the act of individuals 
and not of a government or sovereignty; that the individuals en- 
gaged are subjects of law. That confiscation of their property 
can be effected only under a municipal law. That by the law of 
the land such confiscation cannot take place without the convic- 
tion of the owner of some offense, and finallv that the secession 



THE PRIZE CASES. 849 

ordinances are nullities and ineffectual to release any citizen from 
his allegiance to the national Government, and consequently that 
the Constitution and laws of the United States are still operative 
over persons in all the States for punishment as well as protection. 

This argument rests on the assumption of two propositions, 
each of which is without foundation on the established law of 
nations. It assumes that where a civil war exists, the party bellig- 
erent claiming to be sovereign cannot, for some unknown reason, 
exercise the rights of belligerents, although the revolutionary 
party may. Being sovereign, he can exercise only sovereign rights 
over the other party. The insurgent may be killed on the battle- 
field or by the executioner; his property on land may be confis- 
cated under the municipal law; but the commerce on the ocean, 
which supplies the rebels with means to support the war, cannot 
be made the subject of capture under the laws of war, because it 
is "unconstitutional!!!" Now, it is a proposition never doubted, 
that the belligerent party who claims to be sovereign may exercise 
both belligerent and sovereign rights, (see 4 Cr., 272). Treating 
the other party as a belligerent and using only the milder modes 
of coercion which the law of nations has introduced to mitigate 
the rigors of war, cannot be a subject of complaint by the party to 
whom it is accorded as a grace or granted as a necessity. We 
have shown that a civil war such as that now waged between the 
Northern and Southern States is properly conducted according to 
the humane regulations of public law as regards capture on the 
ocean. 

Under the very peculiar Constitution of this Government, al- 
though the citizens owe supreme allegiance to the Federal Gov- 
ernment, they owe also a qualified allegiance to the State in which 
they are domiciled. Their persons and property are subject to its 
laws. 

Hence, in organizing this rebellion, they have acted as States 
claiming to be sovereign over all persons and property within their 
respective limits, and asserting a right to absolve their citizens from 
their allegiance to the Federal Government. Several of these States 
have combined to form a new confederacy, claiming to be acknowl- 
edged by the world as a sovereign state. Their right to do so is 
now being decided by wager of battle. The ports and territory 
of each of these States are held in hostility to the General Govern- 
ment. It is no loose, unorganized insurrection, having no defined 
boundary or possession. It has a boundary marked by lines of 
bayonets, and which can be crossed only by force — south of this 



350 CASES ON CONSTITUTIONAL LAW. 

line is enemies' territory^ because it is claimed and held in posses- 
sion by an organized, hostile and belligerent power. 

All persons residing within this territory whose property may 
be used to increase the revenues of the hostile power are, in this 
contest, liable to be treated as enemies, though not foreigners. 
They have cast off their allegiance and made war on their Govern- 
ment, and are none the less enemies because they are traitors. 

But in defining the meaning of the term "enemies' property," 
we will be led into error if we refer to Fleta and Lord Coke for 
their definition of the word "enemy." It is a technical- phrase 
peculiar to prize courts, and depends upon principles of public 
policy as distinguished from the common law. 

Whether property be liable to capture as "enemies' property" 
does not in any manner depend on the personal allegiance of the 
owner. "It is the illegal traffic that stamps it as 'enemies' prop- 
erty.' It is of no consequence whether it belongs to an ally or a 
citizen. 8 Cr., 384. The owner, pro liac vice, is an enemy." 3 
Wash. C. C. E., 183. 

The produce of the soil of the hostile country, as well as other 
property engaged in the commerce of the hostile power, as the 
source of its wealth and strength, are always regarded as legiti- 
mate prize, without regard to the domicile of the owner, and much 
more so if he reside and trade within their territory. 

III. We now proceed to notice the facts peculiar to the several 
eases submitted for our consideration. The principles which have 
just been stated apply alike to all of them. . . . 

[Mk. Justice iSTelsox delivered a dissenting opinion, m which 
Chief Justice Taxet and Justices Cateon and Cliefoed con- 
curred.] * 

XoTE. — The decision in the Prize Cases was important not only 
for the legal points determined, but for the complications that 
would have ensued had ihe decision been different. The gravity 
of the situation is set forth in the following letter of Eichard H. 
Dana, Jr., who was one of the counsel for the Government. He 
said, "The Government is carrying on a war. It is exerting all 
the powers of war. Yet the claimants of the captured vessels not 
only seek to save their vessels by denying that they are liable to 
capture, but deny the right of the Government to exercise war 
powers, — deny that this can be, in point of law, a war. So the 
judiciary is actually, after a war of twenty-three months' duration, 
to decide whether the Government has the legal capacity to exert 



EX PARTE MILLIGAN. 351 

these war powers. . . . Contemplate, my dear sir, the possi- 
bility of the Supreme Court deciding that this blockade is illegal! 
What a position it would put us in before the world, whose com- 
merce we have been illegally prohibiting, whom we have unlaw- 
fully subjected to cotton famine, and domestic dangers and dis- 
tress for two years! It would* end the war, and where it would 
leave us with neutral powers, it is fearful to contemplate! Yet 
such an event is legally possible, — I do not think it probable, 
hardly possible, in fact. But last year I think there was danger 
of such a result when the blockade was new, and before the three 
new Judges were appointed." C. F. Adams, Life of Eichard 
Henry Dana, II, 267. Quoted by Carson, The Supreme Court of 
the United States, 385. 

That the fears expressed in this letter were not groundless ap- 
pears from the fact that a majority of the court as it was consti- 
tuted before the appointment of the new Judges dissented from 
the Judgment rendered in this case. 



Ex PARTE MULLIGAN". 
4 Wallace, 2. Decided 1866. 

This case came before tlie court upon a certificate of division 
from the Judges of the Circuit Court for Indiana, on a petition 
for discharge from unlawful imprisonment. . . . [The facts 
are sufficiently stated in the opinion of the court.] 

Mr. Justice Davis delivered the opinion of the court. 

On the 10th day of May, 1865, Lambdin P. Milligan presented 
a petition to the Circuit Court of the United States for the District 
of Indiana, to be discharged from an alleged unlawful imprison- 
ment. The case made by the petition is this: Milligan is a citizen 
of the United States; has lived for twenty years in Indiana; and, 
at the time of the grievances complained of, was not, and never 
had been in the militai-y or naval service of the United States. 
On the 5th day of October, 186-1:, while at home, he was arrested 
by order of General Alvin P. Hovey, commanding the military 
district of Indiana; and has ever since been kept in close confine- 
ment. 

On the 21st day of October, 1864, he was brought before a 



352 CASES ON CONSTITUTIONAL LAW. 

militar}^ commission, conyened at Indianapolis, by order of Gen- 
eral Hovey, tried on certain charges and specifications; found 
guilty, and sentenced to be banged; and the sentence ordered to 
be executed on Friday, the 19tli day of May, 1865. 

On the 2d day of January, 1865, after the proceedings of the 
military commission were at an end, the Circuit Court of the 
United States for Indiana met at Indianapolis and empanelled 
a grand jury, who were charged to inquire whether the laws of 
the United States had been violated; and, if so, to make present- 
ments. The court adjourned on the 27th day of January, having 
prior thereto discharged from further service the grand jury, who 
did not find any bill of indictment or make any presentment 
against Milhgan for any offense whatever; and in fact, since his 
imprisonment, no bill of indictment has been found or present- 
ment made against him by any grand jury -of the United States. 

Milligan insists that said military commission had no jurisdic- 
tion to try him upon the charges preferred, or upon any charges 
whatever; because he was a citizen of the United States and the 
State of Indiana, and had not been, since the commencement of 
the late Eebellion, a resident of any of the States whose citizens 
were aiTayed against the government, and that the right of trial 
by jurj' was guaranteed to him by the Constitution of the United 
States. 

The prayer of the petition was, that under the act of Congress, 
approved March 3d, 1863, entitled, "An act relating to habeas 
corpus and regulating judicial proceedings in certain cases," he 
may be brought before the court, and either turned over to the 
proper civil tribunal to be proceeded against according to the law 
of the land or discharged from custody altogether. 

With the petition were filed the order for the commission, the 
charges and specifications, the findings of the court, with the order 
of the "War Department reciting that the sentence was approved 
by the President of the United States, and directing that it be 
carried into execution without delay. The petition was presented 
and filed in open court by the counsel for Milligan; at the same 
time the District Attorney of the United States for Indiana ap- 
peared, and, by the agreement of counsel, the application was sub- 
mitted to the court. The opinions of the judges of the Circuit 
Court were opposed on three questions, which are certified to the 
Supreme Court: 

1st. "On the facts stated in said petition and exhibits, ought a 
writ of habeas corpus to be issued?" 

2d, "On the facts stated in said petition and exhibits, ought the 



EX PARTE MILLIGAN. 353 

said Lambdin P. Milligan to be discharged from custody as in 
said petition prayed?" 

3d. "Whether, upon the facts stated in said petition and ex- 
hibits, the military commission mentioned therein had jurisdic- 
tion legally to try and sentence said Milligan in manner and form 
as in said petition and exhibits is stated?" 

The importance of the main question presented by this record 
cannot be overstated; for it involves the very framework of the 
government and the fundamental principles of American liberty. 
■ During the late wicked Kebellion, the temper of the times did 
not allow that calmness in deliberation and discussion so neces- 
sary to a correct conclusion of a purely Judicial question. Then, 
considerations of safety were mingled with the exercise of power; 
and feelings and interests prevailed which are happily terminated. 
Now that the public safety is assured, this question, as well as all 
otJiers, can be discussed and decided without passion or the admix- 
ture of any element not required to form a legal judgment. We 
approach the investigation of this case, fully sensible of the mag- 
nitude of the inquiry and the necessity of full and cautious de- 
liberation. 

But we are met with a preliminary objection. It is insisted 
that the Circuit Court of Indiana had no authority to certify these 
questions; and that we are without jurisdiction to hear and de- 
termine them. 

The sixth section of the "Act to amend the judicial sj'Stem of 
the United States," approved April 29, 1802, declares "that when- 
ever any question shall occur before a Circuit Court upon which 
the opinions of the judges shall be opposed, the point upon which 
the disagreement shall happen, shall, during the same term, upon 
the request of either party or their counsel, be stated under the 
direction of the judges and certified under the seal of the court 
to the Supreme Court at their next session to be held thereafter; 
and shall by the said court be finally decided: And the decision 
of the Supreme Court and their order in the premises shall be re- 
mitted to the Circuit Court and be there entered of record, and 
shall have effect according to the nature of the said judgment and 
order: Provided, That nothing herein contained shall prevent 
the cause from proceeding, if, in the opinion of the court, further 
proceedings can be had without prejudice to the merits." 

It is under this provision of law that a Circuit Court has author- 
ity to certify any question to the Supreme Court for adjudication. 
The inquiry, therefore, is whether the case of Milligan is brought 
within its terms. 



354 CASES ON CONSTITUTIONAL LAW. 

It was admitted at the bar that the Circuit Court had jurisdic- 
tion to entertain the application for the writ of habeas corpus and 
to hear and determine it; and it could not be denied; fof the 
poT\'er is expre'ssly given in the 14th section of the Judiciary Act 
of 1T89, as well as in the later act of 1863. Chief Justice Mar- 
shall, in Bollman's case/ construed this branch of the Judiciary 
Act to aiithorize the courts as well as the Judges to issue the writ 
for the purpose of inquiring into the cause of the commitment; 
and this construction has never been departed from. But it is 
maintained with earnestness and ability that a certificate of di- 
vision of opinion can occur only in a cause; and that the pro- 
ceeding by a party, moving for a writ of habeas corpus, does not 
become a cause until after the writ has been issued and a return 
made. 

Independently of the provisions of the act of Congress of March 
3, 1863, relating to habeas corpus, on which the petitioner bases 
his claim for relief, and which we will presently consider, can this 
position be sustained? 

It is true that it is usual for a court" on application for a writ 
of habeas corpus, to issue the vrrit, and on the return, to dispose 
of the case; but the court can elect to waive the issuing of the 
writ and consider whether, upon the facts presented in the peti- 
tion, the prisoner, if brought before it, could be discharged. One 
of the very points on which the case of Tobias Watkins, reported 
in 3 Peters,- turned, was, whether, if the writ has issued, the peti- 
tioner would be remanded upon the case which he had made. The 
Chief Justice, in delivering the opinion of the court, said: "The 
cause of imprisonment is shown as fully by the petitioner as it 
could ap23ear on the return of the writ; consequently the writ 
ought not to be awarded if the court is satisfied that the prisoner 
would be remanded to prison." 

The judges of the Circuit Court of Indiana were, therefore, 
warranted by an express decision of this court in refusing the 
writ, if satisfied that the prisoner on his own showing was right- 
fully detained. 

But it is contended, if they differed about the lawfulness of 
the imprisonment, and could render no judgment, the prisoner is 
remediless; and cannot have the disputed question certified under 
the act of 1802. His remedy is complete by writ of error or ap- 
peal, if the court renders a final judgment refusing to discharge 
him; but if he should be so imfortunate as to be placed in the 

1 4 Cranch, 75. 2 Page 193. 



EX PARTE MILLIGAN. 355 

predicament of having the court divided on the question whether 
he should live or die, he is hopeless and without remedy. He 
wishes the vital question settled, not by a single judge at his 
chambers, but by the highest tribunal known to the Constitution; 
and yet the privilege is denied him; because the Circuit Court 
consists of two judges instead of one. 

Such a result was not in the contemplation of the legislature of 
1803; and the language used by it cannot be construed to mean 
any such thing. The clause under consideration was introduced 
to further the ends of justice, by obtaining a speedy settlement of 
important questions where the judges might be opposed in opinion. 

The act of 1802 so changed the judicial system that the Circuit 
Court, instead of three, was composed of two judges; and with- 
out this provision or a kindred one, if the judges difEered, the 
difference Avould remain, the question be unsettled, and justice 
denied. The decisions of this court upon the provisions of this 
section have been numerous. In United States v. Daniel,^ the 
court, in holding that a division of the judges on a motion for a 
new 'trial could not be certified, say: "That the question must 
be one which arises in a cause depending before the court relative 
to a proceeding belonging to the cause." Testing Milligan's case 
by this rule of law, is it not apparent that it is rightfully here; and 
that we are compelled to answer the questions on which the judges 
below were opposed in opinion? If, in the sense of the law, the 
proceeding for the writ of habeas corpus was the "cause" of the 
party applying for it, then it is evident that the "cause" was 
pending before the court, and -that the questions certified arose 
out of it, belonged to it, and were matters of right and not of dis- 
cretion. 

But it is argued that the proceeding does not ripen into a cause, 
until there are two parties to it. 

This we deny. It was the cause of Milligan when the petition 
was presented to the Circuit Court. It would have been the 
cause of both parties, if the court had issued the writ and brought 
those who held Milligan in custody before it. Webster defines the 
word "cause" thus: "A suit or action in court; any legal process 
which a party institutes to obtain his demand, or by which he 
seeks his right, or supposed right" — and he says, "this is a legal, 
scriptural, and popular use of the word coinciding nearly with 
case, from cado, and action, from ago, to urge and drive." 

In any legal sense, action, suit, and cause, are convertible terais. 

3 6 Wheaton, 542. 



356 CASES ON CONSTITUTIONAL LAW. 

Milligan supposed he had a right to test the validity of his trial 
and sentence; and the proceeding which he set in operation for 
that purpose was his "cause" or "suit." It was the only one hy 
which he could recover his liberty. He was powerless to do more; 
he could neither instruct the judges nor control their action, and 
should not suffer, because, without fault of his, they were unable 
to render a judgment. But the true meaning to the term "suit" 
has been given by this court. One of the questions in Weston v. 
City Council of Charleston* was whether a writ of prohibition 
was a suit; and Chief Justice Marshall says: "The term is cer- 
tainly a comprehensive one, and is understood to apply to any 
proceeding in a court of justice by which an individual pursues 
that remedy which the law affords him." Certainly, Milligan 
pursued the only remedy which the law afforded him. 

Again in Cohens v. Virginia,^ he says: "In law language 
a suit is the prosecution of some demand in a court of 
justice." Also, "To commence a suit is to demand something 
by the institution of process in a court of justice; and to prose- 
cute the suit is to continue that demand." Wiien Milligan de- 
manded his release by the proceeding relating to habeas corpus, 
he commenced a suit; and he has since prosecuted it in all the 
ways known to the law. One of the questions in Holmes v. Jenni- 
son et al.,'' was, whether under the 25th section of the Judiciary 
Act a proceeding for a writ of habeas corpus was a "suit." Chief 
Justice Taney held, that, "if a party is unlawfully imprisoned, 
the writ of habeas corpus is his appropriate legal remedy. It is 
his suit in court to recover his liberty." There was much diversity 
of opinion on another ground of jurisdiction; but that, in the 
sense of the 25th section of the Judiciary Act, the proceeding by 
habeas corpus was a suit, was not controverted by any except Bald- 
win, Justice, and he thought that "suit" and "cause" as used in 
the section, mean the same thing. 

The court do not say that a return must be made and the parties 
appear and begin to try the case before it is a suit. When the 
petition is filed and the writ prayed for, ii: is a suit, — the suit of 
the party making the application. If it is a suit under the 25th 
section of the Judiciary Act when the proceedings are begun, it 
is, by all the analogies of the law, equally a suit under the 6th 
section of the act of 1802. 

But it is argued, that there must be two parties to the suit, be- 

4 2 Peters, 449. 6 14 Peters, 540. 

5 6 Wheaton, 264. 



EX PARTE MILLIGAN. 357 

cause the point is to be stated upon the request of "either party 
or their counseL" 

Such a literal and technical construction would defeat the very 
purpose the legislature had in view, which was to enable any party 
to bring the case here, when the point in controversy was a matter 
of right and not of discretion; and the words "either party," in 
order to prevent a failure of Justice, must be construed as words 
of enlargement, and not of restriction. Although this case is 
here ex parte, it was not considered by the court below without 
notice having been given to the party supposed to have an interest 
in the detention of the prisoner. The statements of the record 
show that this is not only a fair, but conclusive inference. When 
the counsel for Milligan presented to the court the petition for a 
writ of habeas corpus, Mr. Hanna, the District Attorney for Indi- 
ana, also appeared; and, by agreement, the application was sub- 
mitted to the court, who took the case under advisement, and on 
the next day announced their inability to agree, and made the 
certificate. It is clear that Mr. Hanna did not represent the peti- 
tioner, and why is his appearance entered? It admits of no other 
solution than this, — that he was informed of the application, and 
appeared on behalf of the government to contest it. The govern- 
ment was the prosecutor of Milligan, who claimed that his impris- 
onment was illegal; and sought, in the only way he could, to 
recover his liberty. The case was a grave one; and the coint, 
unquestionably, directed that the law officer of the government 
should be informed of it. He very properly appeared, and, as the 
facts were uncontroverted and the difficulty was in the application 
of the law, there was no useful purpose to be obtained in issuing 
the writ. The cause was, therefore, submitted to the court for 
their consideration and determination. 

But Milligan claimed his discharge from custody by virtue of 
the act of Congress "relating to habeas corpus, and regulating 
judicial proceedings in certain cases," approved March 3, 1SG3. 
Did that act confer jurisdiction on the Circuit Court of Indiana 
to hear this case? 

In interpreting a law, the motives which must have operated 
with the legislature in passing it are proper to be considered. This 
law was passed in a time of great national peril, when our heritage 
of free government was in danger. An armed rebellion against 
the national authority, of greater proportions than history affords 
an example of, was raging; and the public safety required that the 
privilege of the writ of habeas corpus should be suspended. The 
President had practically suspended it, and detained suspected 



358 CASES ON CONSTITUTIONAL LAW. 

persons in custody without trial; but his authority to do this was 
questioned. It was claimed that Congress alone could exercise 
this power; and that the legislature, and not the President, should 
judge of the political considerations on which the right to sus- 
pend it rested. The privilege of this great writ had never before 
been withheld from the citizen; and as the exigence of the times 
demanded immediate action, it was of the highest importance 
that the lawfulness of the sitspension should be fully established. 
It was under these circumstances, vrhich were such as to arrest 
the attention of the country, that this law was passed. The Presi- 
dent was authorized by it to suspend the privilege of the writ of 
habeas corpus, whenever, in his judgment, the public safety re- 
quired; and he did, by proclamation, bearing date the 15th of 
September, 1863, reciting, among other things, the authority of 
this statute, suspend it. The suspension of the writ does not 
authorize the arrest of any one, but simply denies to one arrested 
the privilege of this writ in order to obtain his liberty. 

It is proper, therefore, to inquire under what circumstances the 
courts could rightfully refuse to grant this writ, and when the 
citizen was at liberty to invoke its aid. 

The second and third sections of the law are explicit on these 
points. The language used is plain and direct, and the meaning 
of the Congress cannot be mistaken. The pubhc safety demanded, 
if the President thought proper to arrest a suspected person, that 
he should not be required to give the cause of his detention on 
return to a writ of habeas corpus. But it was not contemplated 
that such person should be detained in custody beyond a certain 
fixed period, unless certain judicial proceedings, known to the 
common law, were commenced against him. The Secretaries of 
State and War were directed to furnish to the judges of the courts 
of the United States a list of the names of all parties, not prisoners 
of war, resident in their respective jurisdictions, who then were 
or afterwards should be held in custody by the authority of the 
President, and who were citizens of States in which the admin- 
istration of the laws in the Federal tribunals was unimpaired. 
After the list was furnished, if a grand jury of the district con- 
vened and adjourned, and did not indict or present one of the 
persons thus named, he was entitled to his discharge; and it was 
the duty of the judge of the court to order him brought before 
him to be discharged, if he desired it. The refusal or omission to 
furnish the list could not operate to the injury of any one who 
was not indicted or presented by the grand jury; for, if twenty 
days had elapsed from the time of his arrest and the termination 



EX PARTE MILLIGAN. 359 

of the session of the grand Jury, he was equally entitled to his 
discharge as if the list were furnished; and any credible person, 
on petition verified by affidavit, could obtain the judge's order 
for that purpose, 

Milligan, in his application to be released from imprisonment, 
averred the existence of every fact necessary under the terms of 
this law to give the Circuit Court of Indiana jurisdiction. If he 
was detained in custody by the order of the President, otherwise 
than as a prisoner of war; if he was a citizen of Indiana and had 
never been in the military or naval service, and the grand jury of 
the district had met, after he had been arrested, for a period of 
twenty days, and adjourned without taking any proceedings 
against him, then the court had the right to entertain his petition 
and determine the lawfulness of his imprisonment. Because the 
word "court" is not found in the body of the second section, it 
was argued at the bar, that the application should have been made 
to a judge of the court, and not to the court itself; but this is not 
so, for power is expressly conferred in the last proviso of the 
section on the court equally with a judge of it to discharge from 
imprisonment. It was the manifest design of Congress to secure 
a certain remedy by which any one, deprived of liberty, could 
obtain it, if there was a judicial failure to find cause of offense 
against him. Courts are not, always, in session, and can adjourn 
on the discharge of the grand jury; and before those wdio are in 
confinement could take proper steps to procure their liberation. 
To provide for this contingency, authority was given to the judges 
out of court to grant relief to any party who could show, that, 
under the law, he should be no longer restrained of his liberty. 

It was insisted that Milligan's case was defective because it did 
not state that the list was furnished to the judges; and, there- 
fore, it was impossible to say under which section of the act it 
was presented. 

It is not easy to see how this omission could affect the ques- 
tion of jurisdiction. Milligan could not know that the list was 
furnished, unless the judges volunteered to tell him; for the law 
did not require that any record should be made of it or anybody 
but the judges informed of it. Why aver the fact when the truth 
of the matter was apparent to the court without an averment? 
How can Milligan be harmed by the absence of the averment, when 
he states that he was under arrest for more than sixty days before 
the court and grand jury, which should have considered his case, 
met at Indianapolis? It is apparent, therefore, that under the 
Habeas Corpus Act of 1863 the Circuit Court of Indiana had com- 



360 CASES ON CONSTITUTIONAL LAW. 

plete jurisdiction to adjudicate upon tliis case, and, if tlie judges 
could not agree on questions vital to the progress of tlie cause, 
they had the authority (as we hare shown in a previous part of 
this opinion), and it was their duty to certify those questions of 
disagreement to this court for final decision. It was argued thai 
a final decision on the questions presented ought not to be madf, 
because the parties who were directly concerned in the arrest and 
detention of Milligan, were not before the court; and their rights 
might be prejudiced by the answer which should be given to those 
questions. But this court cannot know what return will be made 
to the writ of habeas corpus when issued; and it is very clear that 
no one is concluded upon any question that may be raised to that 
return. In the sense of the law of 1802 which authorized a certifi- 
cate of division, a final decision means final upon the points 
certified; final upon the court below, so that it is estopped from 
any adverse ruling in all the subsequent proceedings of the cause. 

But it is said that this case is ended, as the presumption is, that 
Milligan was hanged in pursuance of the order of the President. 

Although we have no judicial information on the subject, yet 
the inference is that he is alive; for otherwise learned counsel 
would not appear for him and urge this court to decide his case. 
It can never be in this country of written constitution and laws, 
with a judicial department to interpret them, that any chief 
magistrate would be so far forgetful of his duty, as to ojder the 
execution of a man who denied the jurisdiction that tried and con- 
victed him; after his case was before Federal judges with power 
to decide it, who, being unable to agTce on the grave questions 
involved, had, according to known law, sent it to the Supreme 
Court of the United States for decision. But even the suggestion 
is injurious to the Executive, and we dismiss it from further con- 
sideration. There is, therefore, nothing to hinder this court from 
an investigation of the merits of tliis controversy. 

The controlling question in the case is this: Upon the facts 
stated in Milligan's petition, and the exliibits filed, had the mili- 
tary commission mentioned in it jurisdiction, legally, to try and 
sentence him? Milligan, not a resident of one of the rebellious 
States, or a prisoner of war, but a citizen of Indiana for twenty 
years past, and never in the military or naval service, is, while at 
his home, arrested by the military power of the United States, im- 
prisoned, and, on certain criminal charges preferred against him, 
tried, convicted, and sentenced to be hanged by a military commis- 
sion, organized under the direction of the military commander of 



EX PARTE MILLIGAN. 361 

the military district of Indiana. Had this trihimal the legal 
power and authority to try and punish this man? 

No graver question was ever considered by this court, nor one 
which more nearly concerns the rights of the whole people; for it 
is the birthright of every American citizen when charged with 
crime, to be tried and punished according to law. The power of 
punishment is alone through the means which the laws have pro- 
vided for that purpose, and if they are ineffectual, there is an im- 
munity from punishment, no matter how great an offender the 
individual may be, or how much his crimes may have shocked the 
sense of justice of the country, or endangered its safety. By the 
protection of the law human rights are secured; withdraw that 
protection, and they are at the mercy of wicked rulers, or the 
clamor of an excited people. If there was law to justify this mili- 
tary trial, it is not our province to interfere; if there was not, it is 
our duty to declare the nullity of the whole proceedings. The 
decision of this question does not depend on argument or judicial 
precedents, numerous and highly illustrative as they axe. These 
precedents inform us of the extent of the struggle to preserve 
liberty, and to relieve those in civil life from military trials. The 
founders of our government were familiar with the history of that 
struggle, and secured in a written Constitution every right which 
the people had wrested from power during a contest of ages. By 
that Constitution and the laws authorized by it this ^lestion must 
be determined. The provisions of that instrument on the admin- 
istration of criminal justice are too plain and direct to leave room 
for misconstruction or doubt of their true meaning. Those applica- 
ble to this case are found in that clause of the original Constitution 
which says, "That the trial of all crimes, except in case of im- 
peachment, shall be by jury;" and in the fourth, fifth, and sixth 
articles of the amendments. The fourth proclaims the right to 
be secure in person and effects against unreasonable search and 
seizure; and directs that a judicial warrant shall not issue "with- 
out proof of probable cause supported by oath or affirmation." 
The fifth declares "that no person shall be held to answer for a 
capital or otherwise infamous crime unless on presentment by a 
grand jury, except in cases arising in the land or naval forces, or 
in the militia, when in actual service in time of war or public 
danger, nor be deprived of life, liberty, or property, without due 
process of law." And the sixth guarantees the right of trial by 
jury, in such manner and with such regulations that with up- 
right judges, impartial juries, and an able bar, the innocent will 
be saved and the guilty punished. It is in these words: "In all 



362 CASES ON CONSTITUTIONAL LAW. 

criminal prosecutions the accused shall enjoy the right to a speedy 
and public trial by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall 
have been previously ascertained by law, and to be informed of 
the nature and cause of the accusation, to be confronted with the 
witnesses against him, to have compulsory process for obtaining 
witnesses in his favor, and to have the assistance of counsel for 
his defense." These securities for personal liberty thus embodied, 
were such as wisdom and experience had demonstrated to be nec- 
essary for the protection of those accused of crime. And so strong 
was the sense of the country of their importance, and so jealous 
were the people that these rights, highly prized, might be denied 
them by implication, that when the original Constitution was pro- 
posed for adoption it encountered severe opposition; and, but for 
the belief that it would be so amended as to embrace them, it 
would never have been ratified. 

Time has proven the discernment of our ancestors; for even 
these provisions, expressed in such plain English words, that it 
would seem the ingenuity of man could not evade them, are now, 
after the lapse of more than seventy years, sought to be avoided. 
Those great and good men foresaw that troublous times would 
arise, when rulers and people would become restive under re- 
straint, and seek by sharp and decisive measures to accomplish 
ends deemed just and proper; and that the principles of consti- 
tutional liberty would be in peril, unless established by irre- 
pealable law. The history of the world had taught them that 
what was done in the past might be attempted in the future. The 
Constitution of the United States is a law for rulers and people, 
equally in war and in peace, and covers with the shield of its pro- 
tection all classes of men, at all times, and under all circimi- 
stances. No doctrine involving more pernicious consequences was 
ever invented by the wit of man than that any of its provisions 
can be suspended during any of the great exigencies of govern- 
ment. Such a doctrine leads directly to anarchy or despotism, 
but the theory of necessity on which it is based is false; for the 
government, within the Constitution, has all the powers granted 
to it which are necessary to preserve its existence; as has been 
happily proved by the result of the great effort to throw off its 
just authority. 

Have any of the rights guaranteed by the Constitution been 
violated in the case of Milligan? and if so, what are they? 

Every trial involves the exercise of judicial power; and from 
what source did the military commission that tried him derive 



EX PARTE MILLIGAN. 363 

their authority? Certainly no part of the judicial power of the 
country was conferred on them; because the Constitution ex- 
pressly vests it "in one supreme court and such inferior courts 
as the Congress may from time to time ordain and establish," and 
it is not pretended that the commission was a court ordained and 
established by Congress. They cannot justify on the mandate of 
the President, because he is controlled by law, and has his appro- 
priate sphere of duty, which is to execute, not to make, the laws; 
and there is "no unwritten criminal code to which resort can 
be had as a source of jurisdiction." 

But it is said that the jurisdiction is complete under the "laws 
and usages of war." 

It can serve no useful purpose to inquire what those laws and 
usages are, whence they originated, where found, and on whom 
they operate; they can never be applied to citizens in States which 
have upheld the authority of the government, and where the courts 
are open and their process unobstructed. This court has judicial 
knowledge that in Indiana the Federal authority was always un- 
opposed, and its courts always open to hear criminal accusations 
and redress grievances; and no usage of war could sanction a mili- 
tary trial there for any offense whatever of a citizen in civil life, 
in nowise connected with the military service. Congress could 
grant no such power; and to the honor of our national legislature 
be it said, it has never been provoked by the state of the country 
even to attempt its exercise. One of the plainest constitutional 
provisions was, therefore, infringed when Milligan was tried by a 
court not ordained and established by Congress, and not com- 
posed of judges appointed during good behavior. 

Why was he not delivered to the Circuit Court of Indiana to 
be proceeded against according to law? No reason of necessity 
could be urged against it; because Congress had declared penal- 
ties against the offenses charged, provided for their punishment, 
and directed that court to hear and determine them. And soon 
after this military tribunal was ended, the Circuit Court met, 
peacefully transacted its business, and adjourned. It needed no 
bayonets to protect it, and required no military aid to execute its 
judgments. It was held in a State, eminently distinguished for 
patriotism, by judges commissioned during the Rebellion, who 
were provided with juries, upright, intelligent, and selected by a 
marshal appointed by the President. TJie government had no 
right to conclude that Milligan, if guilty, would not receive in 
that court merited punishment; for its records disclose that it 
was constantly engaged in the trial of similar offenses, and was 



364 CASES ON CONSTITUTIONAL LAW. 

never interrupted in its administration of criminal justice. If it 
was dangerous, in the distracted condition of affairs, to leave ]\Iil- 
ligan unrestrained of his liberty, because he "conspired against 
the government, afforded aid and comfort to rebels, and incited 
the people to insurrection," the law said, arrest him, confine him 
closely, render him powerless to do further mischief; and then 
present his case to the grand jurj^ of the district, with proofs of 
his guilt, and, if indicted, try him according to the course of the 
common law. If this had been done, the Constitution would 
have been vindicated, the law of 1863 enforced, and the securi- 
ties for personal liberty preser^'ed and defended. 

Another guarantee of freedom was broken when Milligan was 
denied a trial by Jury. The great minds of the countr}' have dif- 
fered on the correct interpretation to be given to the various pro- 
visions of the Federal Constitution; and judicial decision has been 
often invoked to settle their true meaning; but until recenth^ 
no one ever doubted that the right of trial by jury was fortified 
in the organic law against the power of attack. It is now as- 
sailed; but if ideas can be expressed in words, and language has 
any meaning, this right — one of the most valuable in a free 
country — is preserved to every one accused of crime who is not 
attached to the army, or navy, or militia in actual service. The 
sixth amendment affirms that "in all criminal prosecutions the 
accused shall enjoy the right to a speedy and public trial by an 
impartial jury," — language broad enough to embrace all persons 
and cases; but the fifth, recognizing the necessity of an indict- 
ment, or presentment, before any one can be held to answer for 
high crimes, "excepts cases arising in the land or naval forces, 
or in the militia, when in actual service, in time of war or public 
danger;" and the framers of the Constitution, doubtless, meant 
to limit the right of trial by jury, in the sixth amendment, to 
those persons who were subject to indictment or presentment 
in the fifth. 

The discipline necessary to the efficiency of the army and 
navy required other and swifter modes of trial than are furnished 
by the common-law cottrts; and, in pursuance of the power con- 
ferred by the Constitution, Congress has declared the kinds of 
trial, and the manner in which they shall be conducted, for offenses 
committed while the party is in the mihtary or naval service. 
Every one connected with these branches of the public service is 
amenable to the jurisdiction which Congress has created for their 
government, and, while thus serving, surrenders his right to be 
tried by the civil courts. All other persons, citizens of States 



A 



EX PARTE MILLIGAN. 365 

where the courts are open, if charged with crime, are guaranteed 
tlie inestimable privilege of trial by jury. This privilege is a vital 
principle, underlying the whole administration of criminal jus- 
tice; it is not held by sufferance, and cannot be frittered away 
on any plea of State or political necessity. When peace prevails, 
and the authority of the government is undisputed, there is no 
ditTiculty of preserving the safeguards of liberty; for the ordinary 
modes of trial are never neglected, and no one wishes it other- 
wise; but if society is disturbed by civil commotion — if the pas- 
sions of men are aroused and the restraints of law weakened, if 
not disregarded — these safeguards need, and should receive, the 
watchful care of those intrusted with the guardianship of the 
Constitution and laws. In no other way can we transmit to pos- 
terity unimpaired the blessings of liberty, consecrated by the 
sacrifices of the Eevolution. 

It is claimed that martial law covers with its broad mantle the 
proceedings of this military commission. The proposition is this: 
that in a time of war the commander of an armed force (if, in his 
opinion, the exigencies of the country demand it, and of which 
he is the judge) has the power, within the lines of his military 
district, to suspend all civil rights and their remedies, and subject 
citizens as well as soldiers to the rule of his will; and in the 
exercise of his lawful authority cannot be restrained, except by 
his superior officer or the President of the United States. 

If this position is sound to the extent claimed, then when war 
exists, foreign or domestic, and the country is subdivided into 
military departments for mere convenience, the commander of one 
of them can, if he chooses, within his limits, on the plea of 
necessity, with the approval of the Executive, substitute mili- 
tary force for, and to the exclusion of, the laws, and punish all 
persons, as he thinks right and proper, without fixed or certain 
rules. 

The statement of this proposition shows its importance; for, 
if true, republican government is a failure, and there is an end 
of liberty regulated by law. Martial law, established on such a 
basis, destroys every guarantee of the Constitution, and effectually 
renders the "military independent of, and superior to, the civil 
power," — ^the attempt to do which by the King of Great Britain 
was deemed by our fathers such an offense, that they assigned it 
to the world as one of the causes which impelled them to declare 
their independence. Civil liberty and this kind of martial law 
cannot endure together; the antagonism is irreconcilable; and, 
in the conflict, one or the other must perish. 



366 CASES ON CONSTITUTIONAL LAW. 

This nation, as experience lias proved, cannot always remain at 
peace, and lias no right to expect that it will always have wise 
and humane rulers, sincerely attached to the principles of the 
Constitution. "Wicked men, ambitious of power, with hatred of 
liberty and contempt of law, may fill the place once occupied 
by "Washington and Lincoln; and if this right is conceded, and 
the calamities of war again befall us, the dangers to human lib- 
erty are frightful to contemplate. If our fathers had failed to 
provide for just such a contingency, they would have been false 
to the trust reposed in them. They knew — the history of the 
world told them — ^the nation they were founding, be its existence 
short or long, would be involved in war; how often or how long 
continued, human foresight could not tell; and that unlimited 
power, wherever lodged at such a time, was especially hazardous 
to freemen. For this, and other equally weighty reasons, they 
secured the inheritance they had fought to maintain, by incor- 
porating in a written Constitution the safeguards which time had 
proved -were essential to its preservation. ISTot one of these safe- 
guards can the President, or Congress, or the Judiciary disturb, 
except the one concerning the writ of habeas corpus. 

It is essential to the safety of every government that in a great 
crisis, like the one we have just passed through, there should be 
a power somewhere of suspending the writ of habeas corpus. In 
every war, there are men of previouslj^ good character, wicked 
enough to counsel their fellow-citizens to resist the measures 
deemed necessary by a good government to sustain its just author- 
ity and overthrow its enemies; and their influence may lead to 
dangerous combinations. In the emergency of the times, an im- 
mediate public investigation according to law may not be pos- 
sible; and yet the peril to the country may be too imminent to 
suffer such persons to go at large. Unquestionably, there is then 
an exigency which demands that the government, if it should 
see fit, in the exercise of a proper discretion, to make arrests, should 
not be required to produce the persons arrested in answer to a 
writ of habeas corpus. The Constitution goes no further. It does 
not say after a writ of habeas corpus is denied a citizen, that he 
shall be tried otherwise than by the course of the common law; 
if it had intended this result, it was easy by the use of direct 
words to have accomplished it. The illustrious men who framed 
that instrument Avere guarding the foundations of civil liberty 
against the abuses of unlimited power; they were full of wisdom, 
and the lessons of history informed them that a trial by an estab- 
lished court, asisted by an impartial jury, was the only sure way 



EX PARTE MILLIGAN. 367 

of protecting the citizen against oppression and wrong. Know- 
ing this, they limited tlie suspension to one great riglit, and left 
the rest to remain forever inviolable. But, it is insisted that the 
safety of the country in time of war demands that this broad 
claim for martial law shall be sustained. If this were true, it 
could be well said that a country, preserved at the sacrifice of all 
the cardinal principles of liberty, is not worth the cost of preserva- 
tion. Happily, it is not so. 

It will be borne in mind that this is not a question of the power 
to proclaim martial law, when war exists in a community and 
the courts and civil authorities are overthrown. Nor is it a ques- 
tion what rule a military commander, at the head of his army, 
can impose on States in rebellion to cripple their resources and 
quell the insurrection. The jurisdiction claimed is much more 
extensive. The necessities of the service, during the late Eebel- 
lion, required that the loyal States should be placed within the 
limits of certain military districts and commanders appointed in 
them; and, it is urged, that this, in a military sense, constituted 
them the theatre of military operations; and, as in this case, 
Indiana had been and was again threatened with invasion by the 
enemy, the occasion was furnished to establish martial law. The 
conclusion does not follow from the premises. If armies were 
collected in Indiana, they were to be employed in another locality, 
where the laws were obstructed and the national authority dis- 
puted. On her soil there was no hostile foot; if once invaded, 
that invasion was at an end, and with it all pretext for martial 
law. Martial law cannot arise from a threatened invasion. The 
necessity must be actual and present; the invasion real, such as 
effectually closes the courts and deposes the civil administra- 
tion. 

It is difficult to see how the safety of the country required mar- 
tial law in Indiana. If any of her citizens were plotting treason, 
the power of arrest could secure them, until the government was 
prepared for their trial, when the courts were open and ready to 
try them. It was as easy to protect witnesses before a civil as a 
military tribunal; and as there could be no wish to convict, 
except on sufficient legal evidence, surely an ordained and estab- 
lished court was better able to judge of this than a military 
tribunal composed of gentlemen not trained to the profession of 
the law. 

It follows, from what has been said on this subject, that there 
are occasions when martial rule can be properly applied. If, in 
foreign invasion or civil war, the courts are actually closed, and 



368 CASES ON CONSTITUTIONAL LAW. 

it is impossible to administer criminal justice according to law, 
then, on the theatre of active military operations, where war 
really prevails, there is a necessity to furnish a substitute for the 
civil authority, thus overthrown, to preserve the safety of the 
army and society; and as no power is left but the military, it is 
allowed to govern by martial rule until the laws can have their 
free course. As necessity creates the rule, so it limits its dura- 
tion; for, if this government is continued after the courts are 
reinstated, it is a gross usurpation of power. Martial rule can 
never exist where the courts are open, and in the proper and 
unobstructed exercise of their jurisdiction. It is also confined 
to the locality of actual war. Because, during the late Eebel- 
lion it could have been enforced in Virginia, where the national 
authority was overturned and the courts driven out, it does not 
follow that it should obtain in Indiana, where that authority was 
never disputed, and justice was always administered. And so 
in the ease of a foreign invasion, martial rule may become a neces- 
sity in one State, when, in another, it would be "mere lawless 
violence." 

"We are not without precedents in English and American his- 
tory illustrating our views of this question; but it is hardly neces- 
sary to make particular reference to them. 

From the first year of the reign of Edward the Third, when 
the Parliament of England reversed the attainder of the Earl 
of Lancaster, because he could have been tried by the courts 
of the realm, and declared, "that in time of peace no man ought 
to be adjudged to death for treason or any other offense with- 
out being arraigned and held to answer; and that regularly when 
the king's courts are open it is a time of peace in judgment of 
law," down to the present day, martial law, as claimed in this 
case, has been condemned by all respectable English jurists as 
contrary to the fundamental laws of the land, and subversive of 
the liberty of the subject. 

During the present century, an instructive debate on this ques- 
tion occurred in Parliament, occasioned by the trial and convic- 
tion by court-martial, at Demerara, of the Eev. John Smith, a 
missionary to the negroes, on the alleged ground of aiding and 
abetting a formidable rebellion in that colony. Those eminent 
statesmen. Lord Brougham and Sir James Mackintosh, partici- 
pated in that debate; and denounced the trial as illegal; because 
it did not appear that the courts of law in Demerara could not try 
offenses,- and that "when the laws can act, every other mode 
of punishing supposed crimes is itself an enormous crime." 



EX PARTE MILLIGAN. 369 

So sensitive were our Eevolutionary fathers on this suhject, 
although Boston was almost in a state of siege, when General 
Grage issued his proclamation of martial law they spoke of it 
as an "attempt to supersede the course of the common law, and 
instead thereof to publish and order the use of martial law." The 
Virginia Assembly, also, denounced a similar measure on the part 
of Governor Dunmore "as an assumed power, which the king 
himself cannot exercise; because it annuls the law of the land 
and introduces the most execrable of all systems, martial law." 

In some parts of the country, during the war of 1812, our 
officers made arbitrary arrests and, by military tribunals, tried 
citizens who were not in the military service. These arrests and 
trials, when brought to the notice of the courts, were uniformly 
condemned as illegal. The cases of Smith v. Shaw, and McCon- 
nell V. Hampden (reported in 12 Johnson,)^ are illus;trations, 
which we cite, not only for the principles they determine, but on 
account of the distinguished jurists concerned in the decisions, 
one of whom for many years occupied a seat on this bench. 

It is contended, that Luther v. Borden, decided by this court, 
is an authority for the claim of martial law advanced in this case. 
The decision is misapprehended. That case grew out of the at- 
tempt in Ehode Island to supersede the old colonial government 
by a revolutionary proceeding. Ehode Island, until that period, 
had no other form of local government than the charter granted 
by King Charles II in 1(563; and as that limited the right of 
suffrage, and did not provide for its own amendment, many citi- 
zens became dissatisfied, because the legislature would not afford 
the relief in their power; and without the authority of law, 
formed a new and independent constitution, and proceeded to 
assert its authority by force of arms. The old government re- 
sisted this; and as the rebellion was formidable, called out the 
militia to subdue it, and passed an act declaring martial law. Bor- 
den, in the military service of the old government, broke open 
the house of Luther, who supported the new, i-n order to arrest 
him. Luther brought suit against Borden; and the question 
was, whether, under the constitution and laws of the state, Borden 
was justified. This court held that a state "may use its mili- 
tary power to put down an armed insurrection too strong to be 
controlled by the civil authority;" and, if the legislature of Ehode 
Island thought the peril so great as to require the use of its 
military forces and the declaration of martial law, there was no 

1 Pages 257 and 234. 
24 



370 CASES ON CONSTITUTIONAL LAW. 

ground on which this court could question its authority; and as 
Borden acted under military orders of the charter government, 
which had been recognized by the political power of the coun- 
try, and was upheld by the state judiciary, he was justified in 
breaking into and entering Luther's house. This is the extent of 
the decision. There was no question in issue about the power of 
declaring martial law under the Federal Constitution, and the 
court did not consider it necessary even to inquire "to what extent 
nor under what circumstances that power may be exercised by 
a state." 

We do not deem it important to examine further the adjudged 
cases; and shall, therefore, conclude without any additional refer- 
ence to authorities. 

To the third question, then, on which the judges below were 
opposed in opinion, an answer in the negative must be returned. 

It is proper to say, although Milligan's trial and conviction 
by a military commission was illegal, yet, if guilty of the crimes 
imputed to him, and his guilt had been ascertained by an estab- 
lished court and impartial jury, he deserved severe punishment. 
Open resistance to the measures deemed necessai'y to subdue a 
great rebellion, by those Avho enjoy the protection of government, 
and have not the excuse even of prejudice of section to plead in 
their favor, is wicked; but that resistance becomes an enormous 
crime when it assumes the form of a secret political organiza- 
tion, armed to oppose the laws, and seeks by stealthy means to 
introduce the enemies of the country into peaceful communities, 
there to light the torch of civil war, and thus overthrow the power 
of the United States. Conspiracies like these, at such a junc- 
ture, are extremely perilous; and those concerned in -them are 
dangerous enemies to their country, and should receive the heav- 
iest penalties of the law, as an example to deter others from sim- 
ilar criminal conduct. It is said the severity of the laws caused 
them; but Congress was obliged to enact severe laws to meet 
the crisis; and as our highest civil duty is to serve our country 
when in danger, the late war has proved that rigorous laws, when 
necessary, will be cheerfully obeyed by a patriotic people, strug- 
gling to preserve the rich blessings of a free government. 

The two remaining questions in this case must be answered 
in the affirmative. The suspension of the privilege of the writ 
of habeas corpus does not suspend the writ itself. The writ issues 
as a matter of course; and on the return made to it the court 
decides whether the party applying is denied the right of pro- 
ceeding any further with it. 



EX PARTE MILLIGAN. 371 

If the militaiy trial of Milligau was contraiy to law, then ne 
was entitled, on the facts stated in his petition, to be discharged 
from custody by the terms of the act of Congress of March 3, 
1863. The provisions of this law having been considered in a 
previous part of this opinion, we will not restate 'the views there 
presented. Milligan avers he was a citizen of Indiana, not in the 
military or naval service, and was detained in close confinement, 
by order of the President, from the 5th day of October, 18G-1, 
until the 2d day of January, 1865, when the Circuit Court for the 
District of Indiana, with a grand jury, convened in session at 
Indianapolis; and afterwards, on the 27th day of the same month, 
adjourned without finding an indictment or presentment against 
him. If these averments were true (and their truth is conceded 
for the purposes of this case), the court was required to liberate 
him on taking certain oaths prescribed by the law, and entering 
into recognizance for his good behavior. 

But it is insisted that Milligan wag a prisoner of war, and, there- 
fore, excluded from the privileges of the statute. It is not easy 
to see how he can be treated as a prisoner of war, when he lived 
in Indiana for the past twenty years, was arrested there, and had 
not been, during the late troubles, a resident of any of the states 
in rebellion. If in Indiana he conspired with bad men to assist 
the enemy, he is punishable for it in the courts of Indiana; but, 
when tried for the offense, he cannot plead the rights of war; 
for he was not engaged in legal acts of hostility against the gov- 
ernment, and only such persons, when captured, are prisoners of 
war. If he cannot enjoy the immunities attaching to the charac- 
ter of a prisoner of war, how can he be subject to their pains 
and penalties? 

This case, as well as the kindred cases of Bowles and Horsey, 
were disposed of at the last term, and the proper orders were 
entered of record. There is, therefore, no additional entry re- 
quired. 

[The Chief Justice, for himself and Messrs. Justices 
Wayne, Swayne, and Miller, delivered an opinion in which he 
differed from the court in several important particulars, but con- 
curred in the order made in the case.] 



IX. EX POST FACTO LAWS AND BILLS 
OF ATTAINDER. 



CALDEE V. BULL. 
3 Dallas, 386. Decided 1798. 

In error from the State of Connecticut. The cause was argued 
at the last term (in the absence of the chief justice), and now 
the court delivered their opinions seriatim. 

Chase^ J. The decision of one question determines^ in my 
opinion, the present dispute. I shall, therefore, state from the 
record no more of the case than I think necessary for the con- 
sideration of that question only. 

The legislature of Connecticut, on the second Thursday of May, 
1795, passed a resolution or law, which, for the reasons assigned, 
set aside a decree of the court of probate for Hartford, on the 21st 
of March, 1793, which decree disapproved of the will of Normand 
Morrison, the grandson, made the 21st of August, 1779, and re- 
fused to record the said will; and granted a new hearing by the 
said court of probate, with liberty of appeal therefrom, in six 
months. A new hearing was had, in virtue of this resolution, or 
law, before the said court of probate, who, on the 27th of July, 
1795, approved the said will, and ordered it to be rect)rded. At 
August, 1795, appeal was then had to the superior court at Hart- 
ford, who, at February term, 1796, affirmed the decree of the 
court of probate. Appeal was had to the supreme court of errors 
of Connecticut, who, in June, 1796, adjudged that there were no 
errors. More than eighteen months elapsed from the decree of 
the court of probate, on the 1st of March, 1793, and thereby 
Caleb Bull and wife were barred of all right of appeal, by a statute 
of Connecticut. There was no law of that State whereby a new 
hearing, or trial, before the said court of probate might be ob- 
tained. Calder and wife claim the premises in question, in right 
of his wife, as heiress of N. Morrison, physician; Bull and wife 
claim under the will of IST. Morrison, the grandson. 

The counsel for the plaintiffs in error contend that the said 

872 



1 



CALDER V. BULL. 373 

resolution or law of the legislature of Connecticut, granting a new 
hearing in the above case, is an ex posit facto law, prohibited 
by the constitution of the United States; that any law of the 
federal government, or of any of the state governments, contrary 
to the constitution of the United States, is void; and that this 
court possesses the power to declare such law void. 

It appears to me a self-evident proposition, that the several 
state legislatures retain all the powers of legislation delegated to 
them by the state constitutions, which are not expressly taken 
aAvay by the consititution of the United States. The establish- 
ing courts of justice, the appointment of judges, and the making 
regulations for the administration of justice within each State, 
according to its laws, on all subjects not intrusted to the federal 
government, appear to me to be the peculiar and exclusive prov- 
ince and duty of the state legislatures. All the powers delegated 
by the people of the United States to the federal government are 
defined, and no constructive powers can be exercised by it, and all 
the powers that remain in the state governments are indefinite, 
except only in the constitution of Massachusetts. 

The effect of the resolution or law of Connecticut above stated, 
is to revise a decision of one of its inferior courts, called the court 
of probate for Hartford, and to direct a new hearing of the case 
by the same court of probate that passed the decree against the 
will of Nonnand Morrison. By the existing law of Connecticut, 
a right to recover certain property had vested in Calder and wife 
(the appellants) in consequence of a decision of a court of jus- 
tice, but, in virtue of a subsequent resolution or law, and the 
new hearing thereof, and the decision in consequence, this right 
to recover certain property was divested, and the right to the 
property declared to be in Bull and wife, the appellees. The 
sole inquiry is, whether this resolution or law of Connecticut, hav- 
ing such operation, is an ex post facto law within the prohibition 
of the federal constitution? 

Whether the legislature of any of the States can revise and cor- 
rect, by law, a decision of any of its courts of justice, although 
not prohibited by the constitution of the State, is a question of 
very great importance, and not necessary now to be determined, 
because the resolution or law in question does not go so far. I 
cannot subscribe to the omnipotence of a state legislature, or that 
it is absolute and without control, although its authority should 
not be expressly restrained by the constitution, or fundamental 
law of the State. The people of the United States erected their 
constitutions, or forms of government, to establish justice, to pro- 



374 CASES ON CONSTITUTIONAL LAW. 

mote tlie general welfare^ to secure the blessings of liberty; and 
to protect their persons and property from violence. The pur- 
poses for which men enter into society will determine the nature 
and terms of the social compact; and as they are the foundation 
of the legislative power, they will decide what are the proper 
objects of it. The nature and ends of legislative power will limit 
the exercise of it. This fundamental principle flows from the 
very nature of our free republican governments, that no man 
should be compelled to do what the laws do not require, nor 
to refrain from acts which the laws permit. There are acts which 
the federal or state legislature cannot do, without exceeding their 
aiithority. There are certain vital principles in our free repub- 
lican governments which will determine and overrule an apparent 
and flagrant abuse of legislative power; as to authorize manifest 
injustice by positive law; or to take away that security for per- 
sonal libert}', or private property, for the protection whereof the 
government was established. x\n act of the legislature (for I can- 
not call it a law), contrary to the great first principles of the 
social compact, cannot be considered a rightful exercise of legis- 
lative authority. The obligation of a law in governments estab- 
lished on express compact, and on republican principles, must be 
determined by the nature of the power on which it is founded. A 
few instances will suffice to explain what I mean. A law that 
punished a citizen for an innocent action, or, in other words, for 
an act which, when done, was in violation of no existing law; a law 
that destroys, or impairs, the lawful private contracts of citizens; a 
law that makes a man a judge in his own cause; or a law that 
takes property from A, and gives it to B. It is against all reason 
and justice for a people to intrust a legislature with such powers; 
and, therefore, it cannot be presumed that they have done it. The 
genius, the nature, and the spirit of our state governments amount 
to a prohibition of such acts of legislation; and the general prin- 
ciples of law and reason forbid them. The legislature may enjoin, 
permit, forbid and punish; they may declare new crimes, and 
establish rules of conduct for all its citizens in future cases; they 
may command what is right, and prohibit what is wrong; but they 
cannot change innocence into guilt, or punish innocence as a 
crime; or violate the right of an antecedent lawful j^rivate con- 
tract; or the right of private property. To maintain that our 
federal or state legislature possesses such powers, if they had 
not been expressly restrained, would, in my oiDinion, be a political 
heresy altogether inadmissible in our free republican governments. 
All the restrictions contained in the constitution of the United 



CALDER V. BULL. 375 

States, on the jjower of the state legislatures, were provided in 
favor of the authority of the federal government. The prohibi- 
tion against their making any ex post facto laws was introduced 
for greater caution, and very probably arose from the knowledge 
that the parliament of Great Britain claimed and exercised a power 
to pass such laws, under the denomination of bills of attainder, 
or bills of pains and penalties; the first inflicting capital, and the 
other less punishment. These acts were legislative judgments; 
and an exercise of judicial power. Sometimes they respected the 
crime, by declaring acts to be treason which were not treason when 
committed;^ at other times they violated the rules of evidence, to 
supply a deficiency of legal proof, by admitting one witness, when 
the existing law required two; by receiving evidence without 
oath; or the oath of the wife against the husband; or other tes- 
timony which the courts of justice would not admit;- at other 
times they inflicted punishments where the party was not by law 
liable to any punishment;^ and in other cases they inflicted 
greater punishment than the law annexed to the offense.* The 
ground for the exercise of such legislative power was this, that 
the safety of the kingdom depended on the death, or other punish- 
ment, of the offender; as if traitors, when discovered, could be 
so formidable, or the government so insecure. With very few 
exceptions, the advocates of such laws were stimulated by ambi- 
tion, or personal resentment and vindictive malice. To prevent 
such, and similar acts of violence and injustice, I believe the 
federal and state legislatures were prohibited from passing any 
bill of attainder, or any ex post facto law. 

The constitution of the United States, art. 1, s. 9, prohibits the 
legislature of the United States from passing any ex post facto 
law; and in sec. 10 lays several restrictions on the authority of 
the legislatures of the several States; and among them, "that no 
State shall pass any ex post facto law." 

It may be remembered that the legislatures of several of the 
States, to wit, Massachusetts, Pennsylvania, Delaware, Maryland, 
and North and South Carolina, are expressly prohibited, by their 
state constitutions, from passing any ex post facto law. 

I shall endeavor to show what law is to be considered an ex 
post facto law, within the words and meaning of the prohibition 

iThe case of the Earl of Straf- endon, 1667, 19 Car., 2, c. 10; and 

ford, in 1640. of Bishop Atterbury, In 1723, 9 

- The case of Sir John Fenwick, Geo. I., c. 17. 
in 1696. i The Coventry Act, in 1670, 22 

3 The banishment of Lord Clar- & 23 Car., 2, c. 1. 



376 CASES ON CONSTITUTIONAL LAW. 

in the federal constitution. The prohibition, 'Hhat no State shall 
pass any ex post facto law/' necessarily requires some explana- 
tion; for naked and without explanation it is unintelligible, and 
means nothing. Literally it is only that a law shall not be passed 
concerning, and after the fact, or thing done, or action commit- 
ted. I would ask, what fact; of what nature or kind; and by 
whom done? That Charles I, king of England, was beheaded; 
that Oliver Cromwell was protector of England; that Louis XYI, 
late king of France, Avas guillotined, — are all facts that have hap- 
pened, but it would be nonsense to suppose that the States were 
prohibited from making any law after either of these events, and 
with reference thereto. The prohibition in the letter is not to 
pass any law concerning and after the fact, but the plain and 
obviou.s meaning and intention of the prohibition is this, that the 
legislatures of the several States shall not pass laws after a fact 
done by a subject, or citizen, which shall have relation to such 
fact, and shall punish him for having done it. The prohibition, 
considered in this light, is an additional bulwark in favor of the 
personal security of the subject, to protect his person from punish-- 
ment by legislative acts, having a retrospective operation. I do 
not think it was inserted to secure the citizen in his private rights, 
of either property or contracts. The prohibitions not to make 
anything but gold and silver coin a tender in payment of debts, 
and not to pass any law impairing the obligation of contracts, 
were inserted io secure private rights; but the restriction not to 
pass any ex post facto law, was to secure the person of the subject 
from injury or punishment, in consequence of such law. If the 
prohibition against making ex post facto laws was intended to 
secure personal rights from being affected or injured by such laws, 
and the prohibition is sufficiently extensive for that object, the 
other restraints I liave enumerated were unnecessary, and there- 
fore improper, for both of them are retrospective. 

I will state what laws I consider ex post facto laws, within the 
words and the intent of the prohibition. 1st. Every law that 
makes an action done before the passing of the law, and which 
was innocent when done, criminal; and punishes such action. 
2d. Every law that aggravates a crime, or makes it greater than 
it was, when committed. 3d. Every law that changes the punish- 
ment, and inflicts a greater punishment than the law annexed to 
the crime, when committed. 4th. Every law that alters the legal 
rules of evidence, and receives less or different testimony than 
the law required at the time of the commission of the offense, 
in order to convict the offender. All these and similar laws are 



CALDER V. BULL. 377 

manifestly unjust and oppressive. In my opinion, the true dis- 
tinction is between ex post facto laws and retrospective laws. 
Every ex post facto law must necessarily be retrospective, but every 
retrospective law is not an ex post facto law; the former only 
are prohibited. Every law that takes away or impairs rights vest- 
ed, agreeably to existing laws, is retrospective, and is generally 
unjust, and may be oppressive; and it is a good general rule that 
a law should have no retrospect; but there are cases in which 
laws may Justly, and for the benefit of the community, and also 
of individuals, relate to a time antecedent to their commence- 
ment; as statutes of oblivion, or of pardon. They are certainly 
retrospective, and literally both concerning, and after, the facts 
committed. But I do not consider any law ex post facto, within 
the prohibition, that mollifies the rigor of the criminal law; but 
only those that create, or aggravate, the crime; or increase the 
punishment, or change the rules of evidence, for the purpose of 
conviction. Every law that is to have an operation before the 
making thereof, as to commence at an antecedent time, or to save 
time from the statute of limitations, or to excuse acts which were 
unlawful, and before committed, and the like, is retrospective. 
Biit such laws may be proper or necessary, as the case may be. 
There is a great and apparent difference between making an un- 
lawful act lawful, and the making an innocent action criminal, 
and punishing it as a crime. The expressions "ex post facto laws" 
are technical; they had been in use long before the Revolution, 
and had acquired an appropriate meaning by legislators, lawyers, 
and authors. The celebrated and Judicious Sir William Black- 
stone, in his Commentaries, considers an ex post facto law pre- 
cisely in the same light I have done. His opinion is confirmed by 
his successor, Mr. Wooddeson, and by the author of the Federalist, 
wdiom I esteem superior to both, for his extensive and accurate 
knowledge of the true principles of government. 

I also rely greatly on the definition, or explanation of ex post 
facto laws, as given by the conventions of Massachusetts, Mary- 
land, and North Carolina, in their several constitutions, or forms 
of government. 

In the declaration of rights, by the convention of Massachusetts, 
part first, section 34th, "Laws made to punish actions done be- 
fore the existence of such laws, and which have not been declared 
crimes by preceding laws, are unjust, &c.'' 

In the declaration of rights, by the convention of Maryland, 
article 15th, "Retrospective laws punishing facts committed before 



378 CASES ON CONSTITUTIONAL LAW. 

the existence of sncli laws^ and by tliem only declared criminal, 
are oj^pressiye, &c." 

In the declaration of rights by the convention of Xorth Caro- 
lina, article 24th, I find the same definition, precisely in the same 
words as in the Maryland constitution. 

In the declaration of rights by the conyention of Delaware, ar- 
ticle 11th, the same definition was clearly intended, but inaccu- 
rately expressed; by saying, "laws punishing offenses (instead of 
actions, or facts) committed before the existence of such laws, are 
oppressive, &c." 

I am of opinion, that the fact, contemplated by the prohibi- 
tion, and not to be affected by a subsecjuent law, was some fact 
to be done by a citizen or subject. 

In 2 Lord Eaymond, 1353, Eaymond, J., called the stat. 7 
Geo. 1, stat. 2, pt. 8, about registering contracts for South Sea 
stock, an ex post facto law; because it affected contracts made be- 
fore the statute. 

In the present case, there is no fact done by Bull and wife, 
plaintiffs in error, that is in any manner affected by the law or 
resolution of Connecticut; it does not concern, or relate to, any 
act done by them. The decree of the court of probate of Hartford, 
on the 21st March, in consequence of which Calder and wife 
claim a right to the property in ques:tion, was given before the 
said law or resolution, and in that sense was affected and set aside 
by it; and in consequence of the law allowing a hearing and a 
decision in favor of the will, they have lost what they would have 
been entitled to, if the law or resolution, and the decision in con- 
sequence thereof, had not been made. The decree of the court 
of probate is the only fact, on which the law or resolution operates. 
In my judgment the case of the plaintiffs in error is not within 
the letter of the prohibition; and, for the reasons assigned, I am 
clearly of opinion, that it is not within the intention of the pro- 
hibition; and if within the intention, but out of the letter, I 
should not, therefore consider myself justified to continue it within 
the prohibition, and therefore that the whole was void. 

It was argued by the counsel for the plaintiffs in error, that 
the legislature of Connecticut had no constitutional power to 
make the resolution, or law, in question, granting a new hear- 
ing, &c. 

Without giving an opinion, at this time, whether this court 
has jurisdiction to decide that any law made by congress, con- 
trary to the constitution of the United States, is void, I am fully 
satisfied that this court has no jurisdiction to determine that any 



CALDER V. BULL. 379 

law of any state legislature, contrary to the constitution of such 
State, is void. Further, if this court had such jurisdiction., yet it 
does not appear to me, that the resolution, or law, in question, is 
contrary to the charter of Connecticut, or its constitution, which 
is said by counsel to be composed of its charter, acts of assembly, 
and usages and customs. I should think that the courts of Con- 
necticut are the proper tribunals to decide whether laws contrary 
to the constitution thereof are void. In the present case they have, 
both in the inferior and superior courts, determined that the reso- 
lution, or law, in question, was not contrary to either their State 
or the federal constitution. 

To show that the resolution was contrary to the constitution of 
the United States, it was contended that the words, ex post facto 
law, have a precise and accurate meaning, and convey but one idea 
to professional men, which is, "by matter of after fact; by some- 
thing after the fact." And Co. Lift., 341; Feame's Cont, Rem. 
(old ed.), 175 and 303; Powell on Devises, 113, 133, 134, were 
cited; and the table to Coke's Reports (by Wilson), title ex post 
facto, was referred to. There is no doubt that a man may be a 
trespasser from tlie beginning, by matter of* after fact; as where 
an entry is given by law, and the party abuses it; or where the 
law gives a distress, and the party kills, or works the distress. 

I admit, an act unlawful in the beginning may, in some cases, 
become lawful by matter of after fact. 

I also agree that the words "ex post facto" have the meaning 
contended for, and no other, in the cases cited, and in all similar 
cases where they are used unconnected with, and without relation 
to, legislative acts, or laws. 

There appears to me a manifest distinction between the case 
where one fact relates to, and affects another fact, as where an 
after fact, by operation of law, makes a former fact either lawful 
or unlawful; and the case where a law made after a fact done, is 
to operate on, and to aifect such fact. In the first case both the 
acts are done by private persons. In the second case the first 
act is done by a private person, and the second act is done by 
the legislature to affect the first act. 

I believe that but one instance can be found in which a British 
judge called a statute that affected contracts made before the 
statute, an ex post facto law; but the judges of Great Britain 
always considered penal statutes, that created crimes, or increased 
the punishment of them, as ex post facto laws. 

If the term ex post facto law is to be construed to include and 
to prohibit the enacting .any law after a fact, it will greatly re- 



380 CASES ON CONSTITUTIONAL LAW. 

strict the power of the federal and state legislatures; and the 
consequences of such a construction may not be foreseen. 

If the prohibition to make no ex post facto law extends to all 
laws made after the fact, the two prohibitions, not to make any- 
thing but gold and silver coin a tender in payment of debts, 
and not to pass any law impairing the obligation of contracts, were 
improper and unnecessary. 

It was further urged, that if the provision does not extend to 
prohibit the making any law after a fact, then all choses in action, 
all lands by devise, aU personal property by bequest or distribu- 
tion, by elegit, by execution, by judgments, particularly on torts, 
will be unprotected from the legislative power of the States; 
rights vested may be divested at the will and pleasure of the state 
legislatures; and, therefore, that the true construction and mean- 
ing of the prohibition is, that the States pass no law to deprive 
a citizen of any right vested in him by existing laws. 

It is not to be presumed that the federal or state legislatures 
will pass laws to deprive citizens of rights vested in them by exist- 
ing laws; unless for the benefit of the whole community; and 
on making full satisfaction. The restraint against making any 
ex post facto laws was not considered, by the framers of the con- 
stitution, as extending to prohibit the depriving a citizen even 
of a vested right to property; or the provision, "that private prop- 
erty should not be taken for public use, without just compensa- 
tion,'" was unnecessary. 

It seems to me that the right of property, in its origin, could 
only arise from compact express, or implied, and I tliink it the 
better opinion, that the right, as well as the mode or manner 
of acquiring property, and of ahenating or transferring, inheriting 
or transmitting it, is conferred by society, is regulated by civil in- 
stitution, and is always subject to the rules prescribed by posi- 
tive law. When I say that a right is vested in a citizen, I mean, 
that he has the power to do certain actions, or to possess certain 
things, according to the law of the land. 

If any one has a right to property, such right is a perfect and 
exclusive right; but no one can have such right before he has 
acquired a better right to the property than any other person in 
the world; a right, therefore, only to recover property cannot be 
called a perfect and exclusive right. I cannot agree, that a right 
to property vested in Calder and wife, in consequence of the decree 
of the 21st of March, IT 83, disapproving of the will of Morrison, 
the grandson. If the will was valid, Mrs. Calder could have no 



CUMMINGS V. STATE OP MISSOURI. 381 

right, as heiress of Morrison, the physician; but if the will was 
set aside, she had an undoubted title. 

The resolution, or law, alone had no manner of effect on any 
right whatever vested in Calder and wife. The resolution, or 
law, combined with the new hearing, and the decision in virtue of 
it, took away their right to recover the property in question. But 
when combined they took away no right of property vested in 
Calder and wife; because the decree against the will, 21st March, 
1783, did not vest in or transfer any property to them. 

I am under a necessity to give a construction, or explanation 
of the words, "ex post facto," because they have not any certain 
meaning attached to them. But I will not go further than I feel 
myself bound to do; and if I ever exercise the Jurisdiction, I will 
not decide any law to be void, but in a very clear case. 

I am of the opinion that the decree of the supreme court of 
errors of Connecticut be aflfinned, with costs. 

[Justices Paterson, Ieedell, and Gushing delivered con- 
curring opinions.] ^ 



CUMMINGS V. THE STATE OF MISSOURI. 

4 Wallace, 277. Decided 1866. 

[The facts are sufficiently stated in the opinion of the court.] 

Mr. Justice Field delivered the opinion of the court. 

This ease comes before us on a writ of error to the Supreme 
Court of Missouri, and involves a consideration of the test oath 
imposed by the constitution of that State. The plaintiff in error 
is a priest of the Eoman Catholic Church, and was indicted and 
convicted in one of the circuit courts of the State of the crime 
of teaching and preaching as a priest and minister of that relig- 
ious denomination without having first taken the oath, and was 
sentenced to pay a fine of five hundred dollars, and to be com- 
mitted to jail until the same was paid. On appeal to the Supreme 
Court of the State, the judgment was affirmed. 

The oath prescribed by the constitution, divided into its sep- 
arable parts, embraces more than thirty distinct affirmations or 
tests. Some of the acts against which it is directed, constitute 
offenses of the highest grade, to which, upon conviction, heavy 
penalties are attached. Some of the acts have never been classed 
as offenses in the laws of any State, and some of the acts, under 



'382 CASES ON CONSTITUTIONAL LAW. 

many circumstances;, ^oulcl not even be blame-worthy. It requires 
tlie affiant to deny not only that lie has ever "l3een in armed hos- 
tility to the United States, or to the lawful authorities thereof/' 
bnt, among other things, that he has ever, '"iDy act or word," man- 
ifested his adherence to the canse of the enemies of the United 
States, foreign or domestic, or his desire for their triumph over 
the arms of the United States, or his sympathy with those en- 
gaged in rebellion, or has ever harbored or aided any person en- 
gaged in guerilla warfare against the loyal inliabitants of the 
United States, or has ever entered or left the State for the jDur- 
pose of avoiding enrolment or draft in the military service of the 
United States; or, to escape the performance of duty in the militia 
of the United States, has ever indicated, in any terms, his disaffec- 
tion to the government of the United States in its contest with 
the Eebellion. 

Every person who is unable to take this oath is declared incapa- 
ble of holding, in the State, ^"any office of honor, trust, or profit 
under its authority, or of being an officer, councilman, director, 
or trustee, or other manager of any corporation, public or private, 
now existing or hereafter established by its authority, or of act- 
ing as a professor or teacher in any educational institution, or 
in any common or other school, or of holding any real estate or 
other property in trust for the use of any church, religious so- 
ciety, or congregation.'*' 

And every person holding, at the time the constitution takes 
effect, any of the offices, trusts, or positions mentioned, is re- 
quired, within sixty days thereafter, to take the oath; and, if he 
fail to comply with this requirement, it is declared that his office, 
trust, or position shall ipso facto become vacant. 

!N"o person, after the expiration of the sixty days, is permitted, 
without taking the oath, "to practice as an attorney or counsel- 
lor-at-law, nor after that period can any person be competent, 
as a bishop, priest, deacon, minister, elder, or other clergyman, 
of any religious persuasion, sect, or denomination, to teach, preach, 
or solemnize marriages." 

Fine and imprisonment are prescribed as a punishment for 
holding or exercising any of '''the offices, positions, trusts, profes- 
sions, or functions" specified, without having taken the oath; and 
false swearing or affirmation in taking it is declared to be perjury, 
punishable by imprisonment in the penitentiary. 

The oath thus required is, for its severity, without any prece- 
dent that we can discover. In the first place, it is retrospective; 
it embraces all the past from this day; and, if taken years hence. 



CUMMINGS V. STATE OF MISSOURI. 383 

it will also cover all the intervening period. In its retrospective 
feature we believe it is peculiar to this country. In England and 
France there have been test oaths, but they were always limited 
to an affirmation of present belief, or present disposition towards 
the government, and were never exacted with reference to particu- 
lar instances of past misconduct. In the second place, the oath 
is directed not merely against overt and visible acts of hostility 
to the government, but is intended to reach words, desires, and 
sympathies, also. And, in the third place, it allows no distinction 
between acts springing from malignant enmity and acts which may 
have been prompted by charity, or affection, or relationship. If 
one has ever expressed sympathy with any who were drawn into 
the Eebellion, even if the recipients of that sympathy were con- 
nected by the closest ties of blood, he is as unable to subscribe to 
the oath as the most active and the most cruel of the rebels, and is 
equally debarred from the offices of honor or trust, and the posi- 
tions and employments specified. 

But, as it was observed by the learned counsel who appeared on 
behalf of the State of Missouri, this court cannot decide the case 
upon the justice or hardship of these provisions. Its duty is to 
determine whether they are in conflict with the Constitution of 
the United States. On behalf of Missouri, it is urged that they 
only prescribe a qualification for holding certain offices, and prac- 
ticing certain callings, and that it is therefore within the power 
of the State to adopt them. On the other hand, it is contended 
that they are in conflict with that clause of the Constitution which 
forbids any State to pass a bill of attainder or an ex post facto 
law. 

We admit the propositions of the counsel of Missouri, that the 
States which existed previous to the adoption of the Federal Con- 
stitution possessed originally all the attributes of sovereignty; that 
they still retain those attributes, except as they have been sur- 
rendered by the formation of the Constitution, and the amend- 
ments thereto; that the new States, upon their admission into the 
Union, became invested with equal rights, and were thereafter sub- 
ject only to similar restrictions, and that among the rights re- 
served to the States is the right of each State to determine the 
qualifications for office, and the conditions upon which its citizens 
may exercise their various callings and pursuits within its juris- 
diction. 

These are general propositions, and involve j)rinciples of the 
highest moment. But it by no means follows that, under the 
form of creating a qualification or attaching a condition, the States 



384 CASES ON CONSTITUTIONAL LAW. 

can in effect inflict a punishment for a past act wMcli was not 
punishable at the time it was committed. The question is not as 
to the existence of the power of the State over matters of internal 
police, but whether that power has been made in the present case 
an instrument for the infliotion of punishment against the inhibi- 
tion of the Constitution. 

Qualifications relate to the fitness or capacity of the party for 
a particular pursuit or profession. Webster defines the term to 
mean "any natural endowment or any acquirement which fits a 
person for a place, office, or employment, or enables him to sus- 
tain any character, with success. It is evident from the nature 
of the pursuits and professions of the parties, placed under dis- 
abilities by the constitution of ]\Iissouri, that many of the aots, 
from the taint of which they must purge themselves, have no 
possible relation to their fitness for those pursuits and professions. 
There can be no connection between the fact that Mr. Cummings 
entered or left the State of Missouri to avoid enrolment or draft 
in the military service of the United States and his fitness to 
teach the doctrines or administer the sacraments of his church; nor 
can a fact of this kind or the expression of words of sympathy 
with some of the persons drawn into the Rebellion constitute 
any evidence of the unfitness of the attorney or counsellor to prac- 
tice his profession, or of the professor to teach the ordinary 
branches of education, or of the want of business knowledge or 
business capacity in the manager of a corporation, or in any di- 
rector or trustee. It is manifest upon the simple statement of 
man}' of the acts and of the professions and pursuits, that there 
is no such relation between them as to render a denial of the 
commission of the acts at all appropriate as a condition of allow- 
ing the exercise of the jDrofessions and pursuits. The oath could 
not, therefore, have been required as a means of ascertaining 
whether parties were qualified or not for their respective callings 
or the trusts with which they were charged. It was reqiiired in 
order to reach the person, not the calling. It was exacted, not 
from any notion that the several acts designated indicated unfit- 
ness for the callings, but because it was thought that the several 
acts deserved punishment, and that for many of them there was 
no way to inflict punishment except by depriving the parties, who 
had committed them, of some of the rights and privileges of the 
citizen. 

The disabilities created by the constitution of Missouri must be 
regarded as penalties — they constitute punishment. We do not 
agree with the counsel of ]\Iissouri that "to punish one is to de- 



CUMMINGS V. STATE OF MISSOURI. 385 

prive him of life, liberty, or property, and that io take from him 
anything less than these is no punishment at all." The learned 
counsel does not use these terms — life, liberty, and property — as 
comprehending every right known to the law. He does not in- 
clude under liberty freedom from outrage on the feelings as well 
as restraints on the person. He does not include under property 
those estates which one may acquire in professions, though they 
are often the source of the highest emoluments and honors. The 
deprivation of any rights, civil or political, previously enjoyed, 
may be punishment, the circumstances attending and the causes 
of the deprivation determining this fact. Disqualification from 
office may be punishment, as in cases of conviction upon im- 
peachment. Disqualification from the pursuits of a lawful 
avocation, or from positions of trust, or from the privi- 
lege of appearing in the courts, or acting as an execu- 
tor, administrator, or guardian, may also, and often has been, 
imposed as punishment. By statute 9 and 10, William III, chap. 
32, if any person educated in or having made a profession 
of the Christian religion, did "by writing, printing, teaching, 
or advised speaking," deny the trath of the religion, or the divine 
authority of the Scriptures, he was for the first offense rendered 
incapable to hold any office or place of trust; and for the second, 
he was rendered incapable of bringing any action, being guar- 
dian, executor, legatee, or purchaser of lands, besides being sub- 
jected to three years' imprisonment without bail.^ 

By statute 1 George I, chap. 13, contempts against the king's 
title, arising from refusing or neglecting to take certain pre- 
scribed oaths, and yet acting in an office or place of trust for 
which they were required, were punished by incapacity to hold any 
public office; to prosecute any suit; to be guardian or execu- 
tor; to take any legacy or deed of gift; and to vote at any elec- 
tion for members of Parliament; and the offender was also sub- 
ject to a forfeiture of five hundred pounds to any one who would 
sue for the same.- 

"Some punishments," says Blackstone, "consist in exile or ban- 
ishment, by abjuration of the realm or transportation; others in 
loss of liberty by perpetual or temporary imprisonment. Some 
extend to confiscation by forfeiture of lands or movables, or both, 
or of the profits of lands for life; others induce a disability of 
holding offices or employments, being heirs, executors, and the 
like."^ 

1 4 Black, 44. s id 377 

2 Id., 124. 

25 



386 CASES ON CONSTITUTIONAL LAW. 

In France, deprivation or suspension of civil rights, or of some 
of them, and among these of the right of voting, of eligibility to 
office, of taking part in family councils, of being guardian or 
trustee, of bearing arms, and of teaching or being employed in 
a school or seminary of learning, are punishments prescribed by 
her code. 

The ftheory upon which our political institutions rest is, that all 
men have certain inalienable rights — ^that among these are life, 
liberty, and the pursuit of happiness; and that in the pursuit of 
happiness all avocations, all honors, all positions, are alike open 
to every one, and that in the protection of these rights all are 
equal before the law. Any deprivation or suspension of any of 
these rights for past conduct is punishment, and can be in no 
otherwise defined. 

Punishment not being, therefore, restricted, as contended 
by counsel, to the deprivation of life, liberty, or property, but 
also embracing deprivation or suspension of political or civil rights, 
and the disabilities prescribed by the provisions of the Missouri 
constitution being in effect punishment, we proceed to consider 
whether there is any inhibition in the Constitution of the United 
States against their enforcement. 

The counsel for Missouri closed his argument in this casie by 
presenting a striking picture of the struggle for ascendancy in 
that State during the recent Eebellion between the friends and 
the enemies of the Union, and of the tierce passions which that 
struggle aroused. It was in the midst of the struggle that the 
present constitution was framed, although itt was not adopted 
by the people until the war had closed. It would have been 
strange, therefore, had it not exhibited in its provisions some 
traces of the excitement amidst which the convention held its 
deliberations. 

It was against the excited action of the States, under such in- 
fluences as these, that the framers of the Federal Constitution 
intended to guard. In Fletcher v. Peck,* Mr. Chief Justice Mar- 
shall, speaking of such action, uses this language: "Whatever re- 
spect might have been felt for the State sovereignties, it is not to 
be disguised that the framers of the Constitution viewed with 
some apprehension the violent acts which might grow out of the 
feelings of the moment; and that the people of the United 
States, in adopting that instrument, have manifested a determina- 
tion to shield themselves and their property from the effects of 
those sudden and strong passions to which men are exposed. The 

i 6 Cranch, 137. 



CUMMINGS V. STATE OF MISSOURI. 387 

restrictions on the legislative power of the States are obviously 
founded in this sentiment; and the Constitution of the United 
States contains what may be deemed a bill of rights for the peo- 
ple of each State." 

"No State shall pass any bill of attainder, ex post facto law, or 
law impairing the obligation of contracts." 

A bill of attainder is a legislative act which inflicts punishment 
wifthout a judicial trial. 

If the punishment be less than death, the act is termed a bill of 
pains and penalties. Within the meaning of the Constitution, bills 
of attainder include bills of pains and penalties. In these cases 
the legislative body, in addition to its legitimate functions, exer- 
cises the powers and office of Judge; it assumes, in the language 
of the text-books, judicial magistracy; it pronounces upon the 
guilt of the party, without any of the forms or safeguards of trial; 
it determines the sufficiency of the proofs produced, whether con- 
formable to the rules of evidence or otherwise; and it fixes the 
degree of punishment in accordance with its own notions of the 
enormity of the offense. 

"Bills of this sort," says Mr. Jusftice Story, "have been most 
usually passed in England in times of rebellion, or gross subserv- 
iency to the crown, or of violent political excitements; periods, 
in which all nations are most liable (as well the free as the en- 
slaved) to forget their duties, and to trample upon the rights and 
liberties of others."^ 

These bills are generally directed against individuals by name; 
but they may be directed against a whole class. The bill against 
the Earl of Kildare and others, passed in the reign of Henry 
VIII," enacted that "all such persons which be or heretofore have 
been comforters, abettors, partakers, confederates, or adherents 
unto the said" late earl, and certain other parties, who were named, 
"in his or their false and traitorous acts and purposes, shall in like- 
wise stand, and be attainted, adjudged, and convicted of high 
treason;" and that "the same attainder, judgment, and convic- 
tion against the said comforters, abettors, partakers, confeder- 
ates, and adherents, shall be as strong and effectual in the law 
against them, and every of them, as though they and every of 
them had been specially, singularly, and particularly named by 
their proper names and surnames in the said act." 

These bills may inflict punishment absolutely, or may inflict 
it conditionally. 

5 Commentaries, § 1344. 6 28 Henry VIII., chap. 18; 3 

Stats, of the Realm, 694. 



388 CASES ON CONSTITUTIONAL LAW. 

The bill against the Earl of Clarendon, passed in the reign of 
Charles the Second, enacted that the earl should suffer perpetual 
-exile, and be forever banished from the realm; and that if he 
returned, or was found in England, or in any other of the king's 
dominions, after the first of February, 1667, he should suffer the 
pains and penalties of treason; with the proviso, however, that if 
he surrendered himself before the said first day of February for 
trial, the penalties and disabilities declared should be void and 
of no effect." 

"A British act of Parliament,'" to cite the language of the Su- 
preme Court of Kentucky, "might declare, that if certain individ- 
uals, or a class of individuals, failed to do a given act by a named 
day, they should be deemed to be, and treated as convicted felons 
or traitors. Such an act comes precisely within the definition of 
a bill of attainder, and the English courts would enforce it with- 
out indictment or trial by jury."^ 

If the clauses of the second article of the constitution of Mis- 
souri, to which we have referred, had in terms declared that Mr. 
Cummings was guilty, or should be held guilty, of having been in 
armed hostility to the United States, or of having entered that 
State to avoid being enrolled or drafted into the military service 
of the United States, and, therefore, should be deprived of the 
right to preach as a priest of the Catholic Church, or to teach in 
any institution of learning, there could be no question that the 
clauses would constitute a bill of attainder within the meaning of 
the Federal Constitution. If these clauses, instead of mentioning 
Ms name, had declared that all priests and clerg}Taen within the 
State of Missouri were guilty of these acts, or should be held 
guilty of them, and hence be subjected to the like deprivation, 
the clauses would be equally open to objection. And, further, if 
these clauses had declared that all such priests and clergymen 
should be so held guilty, and be thus deprived, provided they did 
not, by a day designated, do certain specified acts, they would be 
no less within the inhibition of the Federal Constitution. 

In all these cases there would be the legislative enactment cre- 
ating the deprivation without any of the ordinary forms and 
guards provided for the security of the citizen in the administra- 
tion of justice by the established tribunals. 

The results which would follow from clauses of the character 
mentioned do follow from the clauses actually adopted. The dif- 

" Printed in 6 Howell's State s Gaines v. Buford, 1 Dana, 510. 
Trials, p. 391. 



CUMMINGS V. STATE OF MISSOURI. 389 

ference between the last case supposed and the case actually pre- 
sented is one of form only, and not of substance. The existing 
clauses presume the guilt of the priests and clergymen, and ad- 
judge the deprivation of their right to preach or teach unless the 
presumption be first removed by their expurgatoiy oath — in other 
words, they assume the guilt and adjudge the punishment condi- 
tionally. The clauses supposed differ only in that they declare 
the guilt instead of assuming it. The deprivation is effected 
with equal certainty in the one case as it would be in the other, 
l3ut not with equal directness. The purpose of the lawmaker in 
the case supposed would be openly avowed; in the case existing 
it is only disguised. The legal result must be the same, for what 
cannot be done directly cannot be done indirectly. The Consti- 
tution deals with substance, not shadows. Its inhibition was lev- 
eled at the thing, not the name. It intended that the rights 
_ of the citizen should be secure against deprivation for past conduct 
by legislative enactment, under any form, however disguised. If 
the inhibition can be evaded by the form of the enactment, its 
insertion in the fundamental law was a vain and futile proceed- 
ing. 

We proceed to consider the second clause of wliat Mr. Chief 
Justice Marshall terms a bill of rights for the people of each 
State — the clause which inhibits 'the passage of an ex post facto 
law. 

By an ex post facto law is meant one which imposes a punish- 
ment for an act which was not punishable at the time it was 
committed; or imposes additional punishment to that then pre- 
scribed; or changes the rules of evidence by which less or different 
testimony is sufficient to convict than was then required. 

In Fletcher v. Peck, Mr. Chief Justice Marshall defined an ex 
post facto law to be one "which renders an act punishable in a 
manner in which it was not punishable when it was committed." 
"Such a law," said that eminent judge, "may inflict penalties on 
the person, or may inflict pecuniary penalties which swell the 
public treasury. The legislature is then prohibited from passing 
a law by which a man's estate, or any part of it, shall be seized 
for a crime, which was not declared by some previous law to render 
him lialjle to that punishment. Why, then, should violence be 
done to the natural meaning of words for the purpose of leaving 
to the legislature the power of seizing for public use the estate of 
an individual, in the form of a law annulling the title by which 
he holds the estate? The court can perceive no sufficient grounds 
for making this distinction. This rescinding act would have the 



390 CASES ON CONSTITUTIONAL LAW. 

effect of an ex post facto law. It forfeits the estate of Tletclier 
for a crime not committed by himself, but by those from whom 
he purchased. This cannot be effected in the form of an ex post 
facto law, or bill of attainder; why, then, is it allowable in the 
form of a law annulling the original grant?" 

The act to which reference is here made was one passed by the 
State of Georgia, rescinding a previous act, under which lands 
had been granted. The rescinding act, annulling the title of the 
grantees, did not, in terms, define any crimes, or inflict any pun- 
ishment, or direct any judicial proceedings; yet, inasmuch as the 
legislature was forbidden from passing any law by which a man's 
estate could be seized for a crime, which was not declared such 
by some previous law rendering him liable to that punishment, the 
chief justice was of opinion that the rescinding act had the effect 
of an ex post facto law, and was within the constitutional prohi- 
bition. 

The clauses in the Missouri constitution, which are the subject 
of consideration, do not, in terms, define any crimes, or declare 
that any punishment shall be inflicted, but they produce the same 
result upon the parties, against whom they are directed, as though 
the crimes were defined and the punishment was declared. They 
assume that there are persons in Missouri who are guilty of some 
of the acts designated. They would have no meaning in the 
constitution were not such the fact. They are aimed at past acts, 
and not future acts. They were intended especially to operate 
upon parties who, in some form or manner, by action or words, 
directly or indirectly, had aided or countenanced Eebellion, or 
sympathized with parties engaged in the Eebellion, or had en- 
deavored to escape the proper responsibilities and duties of a 
citizen in time of war; and they were intended to operate by de- 
priving such persons of the right to hold certain offices and trusts, 
and to pursue their ordinary and regular avocations. This de- 
privation is punishment; nor is it any less so because a way is 
opened for escape from it by the expurgatory oath. The framers 
of the constitution of Missouri knew at the time that whole 
classes of individuals would be unable to take the oath prescribed. 
To them there is no escape provided; to them the deprivation 
was intended to be, and is, absolute and perpetual. To make the 
enjoyment of a right dependent upon an impossible condition is 
equivalent to an absolute denial of the right under any condition, 
and such denial, enforced for a past act, is nothing less than pun- 
ishment imposed for that act. It is a misapplication of terms to 
call it anything else. 



CUMMINGS V. STATE OF MISSOURI. 391 

Now, some of the acts to which the expiirgatory oath is di- 
rected were not ofEenses at the time they were committed. It was 
no offense against any law to enter or leave the State of Missouri 
for the purpose of avoiding enrollment or draft in the military 
service of the United States, however much the evasion of such 
service might he the subject of moral censure. Clauses which 
prescribe a penalty for an act of this nature are within the terms 
of the definition of an ex post facto law — "they impose a punish- 
ment for an act not punishable at the time it was committed." 

Some of the acts at which the oath is directed constituted high 
offenses at the time they were committed, to which, upon convic- 
tion, fine and imprisonment, or other heavy penalties, were at- 
tached. The clauses which provide a further penalty for these 
acts are also within the definition of an ex post facto law — "they 
impose additional punishment to that prescribed when the act 
was committed." 

And this is not all. Tlie clauses in question subvert the pre- 
sumptions of innocence, and alter the rules of evidence, which 
heretofore, under the universally recognized principles of the 
common law, have been supposed to be fundamental and un- 
changeable. They assume that the parties are guilty; they call 
upon the parties to establish their innocence; and they declare 
that such innocence can be shown only in one way — by an inqui- 
sition, in the form of an expurgatory oath, into the consciences 
of the parties. 

The objectionable character of these clauses will be more ap- 
parent if we put them into the ordinary form of a legislative act. 
Thus, if instead of the general provisions in the constitution the 
convention had provided as follows: Be it enacted, that all per- 
sons who have been in armed hostility to the United States shall, 
upon conviction thereof, not only be punished as the laws pro- 
vided at the time the offenses charged were committed, but shall 
also be thereafter rendered incapable of holding any of the offices, 
trusts, and positions, and of exercising any of the pursuits men- 
tioned in the second article of the constitution of Missouri; — no 
one would have any doubt of the nature of the enactment. It 
would be an ex post facto law, and void; for it would add a new 
punishment for an old offense. So, too, if the convention had 
passed an enactment of a similar kind with reference to those acts 
which do not constitute offenses. Thus, had it provided as fol- 
lows: Be it enacted, that all persons who have heretofore, at any 
time, entered or left the State of Missouri, with intent to avoid 
enrollment or draft in the military service of the United States, 



392 CASES ON CONSTITUTIONAL LAW. 

shall, upon conviction thereof, be forever rendered incapable of 
holding any office of honor, trust, or profit .in the State, or of 
teaching in any seminary of learning, or of preaching as a min- 
ister of the gospel of any denomination, or of exercising any of 
the professions or pursuits mentioned in the second article of the 
constitution; — there would be no question of the character of the 
enactment. It would be an ex post facto law, because it would 
impose a punishment for an act not punishable at the time it was 
committed. 

The provisions of the constitution of Missouri accomplish pre- 
cisely what enactments like those supposed would' have accom- 
plished. They impose the same penalty, without the formality of 
a judicial trial and conviction; for the parties embraced by the 
supposed enactments would be incapable of taking the oath pre- 
scribed; to them its requirement would be an impossible condi- 
tion. jSTow, as the State, had she attempted the course supposed, 
would have failed, it must follow that any other mode producing 
the same result must equally fail. The provision of the Federal 
Constitution, intended to secure the liberty of the citizen, can- 
not be evaded by the form in which the power of the State is 
exerted. If this were not so, if that which cannot be accom- 
plished by means looking directly to the end, can be accom- 
plished by indirect means, the inhibition may be evaded at pleasure. 
No kind of oppression can be named, against which the framers 
of the Constitution intended to guard, which may not be effected. 
Take the case supposed by counsel — ^that of a man tried for trea- 
son and acquitted, or, if convicted, pardoned — the legislature 
may nevertheless enact that, if the person thus acquitted or par- 
doned does not take an oath that he never has committed the acts 
charged against him, he shall not be permitted to hold any office 
of honor or trust or profit, or pursue any avocation in the State. 
Take the case before us; — ^the constitution of Missouri, as we have 
seen, excludes, on failure to take the oath prescribed by it, a large 
class of persons within her borders from numerous positions and 
pursuits; it would have been equally within the power of the 
State to have extended the exclusion so as to deprive the parties, 
who are unable to take the oath, from any avocation whatever in 
the State. Take still another case: — suppose that in the progress 
of events, persons now in the minority in the State should obtain 
the ascendancy, and secure the control of the government; noth- 
ing could prevent, if the constitutional prohibition can be evaded, 
the enactment of a provision requiring every person, as a condi- 
tion of holding any position of honor or trust, or of pursuing any 



CUMMINGS V. STATE OF MISSOURI. 393 

• 
avocation in the State, to take an oath that he had never advo- 
cated or advised or supported the imposition of the present expur- 
gatory oath. Under this form of legislation the most flagrant in- 
vasion of private rights, in periods of excitement, may be enacted, 
and individuals, and even whole classes, may be deprived of polit- 
ical and civil rights. 

A question arose in New York, soon after the treaty of peace of 
1783, upon a statute of that State, which involved a discussion of 
the nature and character of these expurgatory oaths, when used 
as a means of inflicting punishment for past conduct. The subject 
was regarded as so important, and the requirement of the oath 
such a violation of the fundamental principles of civil liberty, and 
the rights of the citizen, that it engaged the attention of eminent 
lawyers and distinguished statesmen of the time, and among others 
of Alexander Hamilton. We will cite some passages of a paper 
left by him on the subject, in which, with his characteristic full- 
ness and ability, he examines the oath, and demonstrates that it 
is not only a mode of inflicting punishment, but a mode in viola- 
tion of all the constitutional guarantees, secured by the Eevolu- 
tion, of the rights and liberties of the people. 

"If we examine it" (the measure requiring the oath), said this 
great lawyer, "with an unprejudiced eye, we must acknowledge, 
not only that it was an invasion of the treaty, but a subversion 
of one great principle of social security, to wit: that every man 
shall be presumed innocent until he is proved guilty. This was 
to invert the order of things; and instead of obliging the State 
to prove the guilt, in order to inflict the penalty, it was to oblige 
the citizen to establish his own innocence to avoid the penalty. 
It was to excite scruples in the honest and conscientious, and to 
hold out a bribe to perjury, ... It was a mode of inquiry 
[as to] who had committed any of those crimes to which the 
penalty of disqualification was annexed, with this aggravation, 
that it deprived the citizen of the benefit of that advantage, which 
he would have enjoyed by leaving, as in all other cases, the burden 
of the proof upon the prosecutor. 

"To place this matter in a still clearer light, let it be supposed 
that, instead of the mode of indictment and trial by jury, the legis- 
lature was to declare that every citizen who did not swear he had 
never adliered to the King of Great Britain should incur all the 
penalties which our treason laws prescribe. Would this not be a 
palpable evasion of the treaty, and a direct infringement of the 
Constitution? The principle is the same in both cases, with only 
this difi'erence in the consequences — that in the instance already 



394 CASES ON CONSTITUTIONAL LAW. 

acted upon the citizen forfeits a part of his rights; in the one 
supposed he would forfeit the whole. The degree of punishment 
is all that distinguishes the cases. In either, justly considered, it 
is substituting a new and arbitrary mode of prosecution to that 
ancient and highly esteemed one recognized by the laws and con- 
stitution of the State. I mean the trial by jury. 

"Let us not forget that the Constitution declares that trial by 
jury, in all cases in which it has been formerly used, should re- 
main inviolate forever, and that the legislature should at no time 
erect any new jurisdiction which should not proceed according to 
the course of the common law. Nothing can be more repugnant 
to the true genius of the common law than such an inquisition as 
has been mentioned into the consciences of men. ... If 
any oath with retrospect to past conduct were to be made the 
condition on which individuals, who have resided within the Brit- 
ish lines, should hold their estates, we should immediately see 
that this proceeding would be tyrannical, and a violation of the 
treaty; and yet, when the same mode is employed to divert that 
right, which ought to be deemed still more sacred, many of us 
are so infatuated as to overlook the mischief. 

"To say that the persons who will be affected by it have previ- 
ously forfeited that right, and that, therefore, nothing is taken 
away from them, is a begging of the question. How do we know 
Avho are the persons in this situation? If it be answered, this is 
the mode taken to ascertain it — the objection returns — 'tis an 
improper mode; because it puts the most essential interests of the 
citizen upon a worse footing than we should be willing to tolerate 
where inferior interests were concerned; and because, to elude the 
treaty, it substitutes for the established and legal mode of investi- 
gating crimes and inflicting forfeitures, one that is unknown to 
the Constitution, and repugnant to the genius of our law." . . . 

The judgment of the Supreme Court of Missouri must be re- 
versed, and the cause remanded, with directions to enter a judg- 
ment reversing the judgment of the Circuit Court, and directing 
that court to discharge the defendant from imprisonment, and suf- 
fer him to depart without delay. And it is so ordered. 

The Chief Justice, and Messes. Justices Swayne, Davis, 
and MiLLEE dissented. . . . 

ISToTE. — The case of Ex parte Garland, 4 Wallace, 333, presented 
a similar state of facts, and the dissenting opinion of Justice 
Miller, 4 Wallace, 382, applies to both these cases. 



X. IMPAIRMENT OF CONTRACTS. 



FLETCHER v. PECK. 
6 Cranch, 87. Decided 1810. 

Errok to the circuit court of the United States for the district 
of Massachusetts, in an action of covenant brought by Fletcher 
against Peck. . . . 

March 16, 1810. Marshall, C. J., delivered the opinion of the 
court as follows: 

The pleadings being now amended, this cause comes on again 
to be heard on sundry demurrers, and on a special verdict. 

This suit was instituted on several covenants contained in a 
deed made by John Peck, the defendant in error, conveying to 
Eobert Fletcher, the plaintiff in error, certain lands which were 
part of a large purchase made by James Gunn and others, in the 
year 1795, from the State of Georgia, the contract for which was 
made in the form of a l^ill passed by the legislature of that State. 

The first count in the declaration set forth a breach in the 
second covenant contained in the deed. The covenant is, "that 
the legislature of the State of Georgia, at the time of passing the 
act of sale aforesaid, had good right to sell and dispose of the same 
in manner pointed out by the said act." The breach assigned is, 
that the legislature had no power to sell. 

The plea in bar sets forth the constitution of the State of 
Georgia, and avers that the lands sold by the defendant to the 
plaintiff, were within that State. It then sets forth the granting 
act, and avers the power of the legislature to sell and dispose of 
the premises as pointed out l^y the act. 

To this plea the plaintiff below demurred, and the defendant 
Joined in demurrer. 

That the legislature of Georgia, unless restrained by its own 
constitution, possesses the power of disposing of the unappro- 
priated lands within its own limits, in such manner as its own judg- 
ment shall dictate, is a proposition not to be controverted. The 

395 



396 CASES ON CONSTITUTIONAL LAW. 

only question, then, presented by this demurrer, for the consid- 
eration of the court, is this, did the then constitution of the State 
of Georgia prohibit the legislature to dispose of the lands, which 
were the subject of this contract, in the manner stipulated by the 
contract? 

The question whether a law be void for its repugnancy to the 
constitution, is, at all times, a question of much delicacy, which 
ought seldom, if ever, to be decided in the affirmative, in a doubt- 
ful case. The court, when impelled by duty to render such a 
judgment, would be unworthy of its station, could it be unmind- 
ful of the solemn obligations which that station imposes. But 
it is not on slight implication and vague conjecture that the leg- 
islature is to be pronounced to have transcended its powers, and 
its acts to be considered as void. The opposition between the 
constitution and the law should be such that the judge feels a 
clear and strong conviction of their incompatibility with each 
other. 

In this case the court can perceive no such opposition. In the 
constitution of Georgia, adopted in the year 1789, the court can 
perceive no restriction on the legislative power, which inhibits the 
passage of the act of 1795. They cannot say that, in passing 
that act, the legislature has transcended its powers, and violated 
the constitution. 

In overruling the demurrer, therefore, to the first plea, the cir- 
cuit court committed no error. 

The third covenant is, that all the title which the State of 
Georgia ever had in the premises had been legally conveyed to 
John Peck, the grantor. 

The second count assigns, in substance, as a breach of this 
covenant, that the original grantees from the State of Georgia 
promised and assured divers members of the legislature, then sit- 
ting in general assembly, that if the said members would assent 
to, and vote for, the passing of the act, and if the said bill should 
pass, such members should have a share of, and be interested in, 
all the lands purchased from the said State by virtue of such 
law. And that divers of the said members, to whom the said 
promises were made, were unduly influenced thereby, and, under 
such influence, did vote for the passing of the said bill; by rea- 
son whereof the said law was a nullity, &c., and so the title of the 
State of Georgia did not pass to the said Peck, &c. 

The plea to this count, after protesting that the promises it 
alleges were not made, avers, that until after the purchase made 
from the original grantees by James Greenleaf, under whom the 



FLETCHER v. PECK. 397 

said Peck claims, neither the said James Greenleaf, nor tlie said 
Peck, nor any of tlie mesne vendore between the said Greenleaf 
and Peck, had any notice or knowledge that any such promises or 
assurances were made by the said original grantees, or either of 
them, to any of the members of the legislature of the State of 
Georgia. 

To this plea the plaintiff demurred generally, and the defend- 
ant joined in the demurrer. 

That corruption should find its way into the governments of 
our infant republics, and contaminate the very source of legisla- 
tion, or that impure motives should contribute to the passage of 
a law, or the formation of a legislative contract, are circumstances 
most deeply to be deplored. How far a court of justice would, in 
any case, be competent, on proceedings instituted by the State 
itself, to vacate a contract thus formed, and to annul rights ac- 
quired under that contract, by third persons having no notice of 
the improper means by which it was obtained, is a question which 
the court would approach with much circumspection. It may 
well be doubted how far the validity of a law depends upon the 
motives of its framers, and how far the particular inducements, 
operating on members of the supreme sovereign power of a State, 
to the formation of a contract by that power, are examinable in a 
court of justice. If the principle be conceded, that an act of the 
supreme sovereign power might be declared null by a court in 
consequence of the means which procured it, still would there be 
much difficulty in saying to what extent those means must be 
applied to produce this effect. Must it be direct corruption, or 
would interest or undue influence of any kind be suthcient? Must 
the vitiating cause operate on a majority, or on what number of 
the members? Would the act be null, whatever might be the wish 
of the nation, or would its obligation or nullity depend upon the 
public sentiment? 

If the majority of the legislature be corrupted, it may well be 
doubted whether it be within the province of the judiciary to 
control their conduct, and, if less than a majority act from impure 
motives, the principle by which judicial interference would be 
regulated is not clearly discerned. 

Whatever difficulties this subject might present, when viewed 
under aspects of which it may be susceptible, this court can per- 
ceive none in the particular pleadings now under consideration. 

This is not a bill brought by the State of Georgia to annul the 
contract, nor does it appear to the court, by this count, that the 
State of Georojia is dissatisfied with the sale that has been made. 



398 CASES ON CONSTITUTIONAL LAW. 

The case, as made out in the pleadings, is simply this. One indi- 
vidual who holds lands in the State of Georgia, under a deed 
covenanting that the title of Georgia was in the grantor, brings 
an action of covenant upon this deed, and assigns, as a breach, 
that some of the members of the legislature were induced to vote 
in favor of the law which constituted the contract, by being 
promised an interest in it, and that therefore the act is a mere 
nullity. 

This solemn question cannot be brought thus collaterally and 
incidentally before the court. It would be indecent in the ex- 
treme, upon a private contract between two individuals, to enter 
into an inquiry respecting the corruption of the sovereign power 
of a State. If the title be plainly deduced from a legislative act, 
which the legislature might constitutionally pass, if the act be 
clothed with all the requisite forms of a law, a court, sitting as a 
court of law, cannot sustain a suit brought by one individual 
against another founded on the allegation that the act is a nullity, 
in consequence of the impure motives which influenced certain 
members of the legislature which passed the law. 

The circuit court, therefore, did right in overruling this de- 
murrer. 

The fourth covenant in the deed is, that the title to the prem- 
ises has been in no way constitutionally or legally impaired by 
virtue of any subsequent act of any subsequent legislature of the 
State of Georgia. 

The third count recites the undue means practised on certain 
members of the legislature, as stated in the second count, and 
then alleges that, in consequence of these practices and of other 
causes, a subsequent legislature passed an act annulling and re- 
scinding the law under which the conveyance to the original 
grantees was made, declaring that conveyance void, and asserting 
the title of the State to the lands it contained. The count pro- 
ceeds to recite at large this rescinding act, and concludes with 
averring that, by reason of this act, the title of the said Peck in 
the premises was constitutionally and legally impaired, and ren- 
dered null and void. 

After protesting as before that no such promises were made as 
stated in this count, the defendant again pleads that himself and 
the first purchaser under the original grantees, and all interme- 
diate holders of the projDerty, were purchasers without notice. 

To this plea there is a demurrer and joinder. 

The importance and the difficulty of the questions presented 
by these pleadings, are deeply felt by the court. 



FLETCHER v. PECK. 399 

The lands in controversy vested absolutely in James Gunn and 
others, the original grantees, by the conveyance of the governor, 
made in pursuance of an act of assembly to which the legislature 
was fully competent. Being thus in full possession of the legal 
es'tate, they, for a valuable consideration, conveyed portions of 
the land to those who were willing to purchase. If the original 
transaction was infected with fraud, these purchasers did not ]}a.v- 
ticipate in it, and had no notice of it. They were innocent. Yet 
the legislature of Georgia has involved them in the fate of the 
first parties to the transaction, and, if the act be valid, has anni- 
hilated their rights also. 

The legislature of Georgia was a party to this transaction; and 
for a party to pronounce its own deed invalid, whatever cause may 
be assigned for its invalidity, must be considered as a mere act of 
power which must find its vindication in a train of reasoning not 
often heard in courts of justice. 

But the real party, it is said, are the people, and when their 
agents are unfaithful, the acts of those agents cease to be 
obligatory. 

It is, however, to be recollected that the people can act only by 
these agents, and that, while within the powers conferred on them, 
their acts must be considered as the acts of the people. If the 
agents be corrupt, others may be chosen, and if their contracts be 
examinable, the common sentiment, as well as common usage of 
mankind, points out a mode by which this examination may be 
made, and their validity determined. 

If the legislature of Georgia was not bound to submit its pre- 
tensions to those tribunals which are established for the security 
of property, and to decide on human rights, if it might claim to 
itself the power of judging in its own case, yet there are certain 
great principles of justice, whose authority is universally acknowl- 
edged, that ought not to be entirely disregarded. 

If the legislature be its own judge in its own case, it would 
seem equitable that its decisions should be regulated by those 
rules which would have regulated the decision of a judicial tri- 
bunal. The question was, in its nature, a question of title, and 
the tribunal which decided it was either acting in the character 
of a court of justice, and performing a duty usually assigned to a 
court, or it was exerting a mere act of power in which it was con- 
trolled only by its own will. 

If a suit be brought to set aside a conveyance obtained by fraud, 
and the fraud be clearly proved, the conveyance will be set aside, 
as between the parties; but the rights of third persons, who are 



400 CASES ON CONSTITUTIONAL LAW. 

purchasers without notice, for a valuable consideration, cannot be 
disregarded. Titles, which, according to every legal test, are per- 
fect, are acquired with that confidence which is inspired by the 
opinion that the purchaser is safe. If there be any concealed de- 
fect, arising from the conduct of those who had held the property 
long before he acquired it, of which he had no notice, that con- 
cealed defect cannot be set up against him. He has paid his 
money for a title good at law; he is innocent, whatever may be 
the guilt of others, and equity will not subject him to the pen- 
alties attached to that guilt. All titles would be insecure, and the 
intercourse between man and man would be very seriously ob- 
structed, if this principle be overturned, 

A court of chancery, therefore, had a bill been brought to set 
aside the conveyance made to James Gunn and others, as being 
obtained by improper praetices with the legislature, whatever 
might have been its decision as respected the original grantees, 
would have been bound, by its own rules, and by the clearest prin- 
ciples of equity, to leave unmolested those who were purchasers, 
without notice, for a valuable consideration. 

If the legislature felt itself absolved from those rules of prop- 
erty which are common to all the citizens of the United States, 
and from those principles of equity which are acknowledged in 
all our courts, its act is to be supported by its power alone, and 
the same power may divest any other individual of his lands, if it 
shall be the will of the legislature so to exert it. 

It is not intended to speak with disrespect of the legislature of 
Georgia, or of its acts. Far from it. The question is a general 
question, and is treated as one. For although such powerful ob- 
jections to a legislative grant, as are alleged against this, may not 
again exist, yet the principle, on which alone this rescinding act 
is to be supported, may be applied to every case to which it shall be 
the will of any legislature to apply it. The principle is this: that 
a legislature may, by its own act, divest the vested estate of any 
man whatever, for reasons which shall, by itself, be deemed suf- 
ficient. 

In this case the legislature may have had ample proof that the 
original grant was obtained by practices which can never be too 
much reprobated, and which would have justified its abrogation so 
far as respected those to whom crime was imputable. But the 
grant, when issued, conveyed an estate in fee-simple to the grantee, 
clothed with all the solemnities which law can bestow. This estate 
was transferable; and those who purchased parts of it were not 
stained by that guilt which infected the original transaction. 



FLETCHER v. PECK. 401 

Their case is not distinguishable from the ordinary case of pur- 
chasers of a legal estate without knowledge of any secret fraud 
which might have led to the emanation of the original grant. 
According to the well-known course of equity, their rights could 
not be affected by such fraud. Their situation was the same, 
their title was the same, with that of every other member of the 
community who holds land by regular conveyances from the orig- 
inal patentee. 

Is the power of the legislature competent to the annihilation of 
such title, and to a resumption of the property thus held? 

The principle asserted is, that one legislature is competent to 
repeal any act which a former legislature was competent to pass; 
and that one legislature cannot abridge the powers of a succeed- 
ing legislature. 

The correctness of this principle, so far as respects general leg- 
islation, can never be controverted. But if an act be done under 
a law, a succeeding legislature cannot undo it. The past cannot 
be recalled by the most absolute power. Conveyances have been 
made, those conveyances have vested legal estates, and, if those 
estates may be seized by the sovereign authority, still, that they 
originally vested is a fact, and cannot cease to be a fact. 

When, then, a law is in its nature a contract, when absolute 
rights have vested under that contract, a repeal of the law cannot 
divest those rights; and the act of annulling them, if legitimate, 
is rendered so by a power applicable to the case of every individual 
in the community. 

It may well be doubted whether the nature of society and of 
government does not prescribe some limits to the legislative power; 
and if any be prescribed, where are they to be found, if the prop- 
erty of an individual, fairly and honestly acquired, may be seized 
without compensation? 

To the legislature all legislative power is granted; but the ques- 
tion, whether the act of transferring the property of an individual 
to the public, be in the nature of the legislative power, is well 
worthy of serious reflection. 

It is the peculiar province of the legislature to prescribe general 
rules for the government of society; the application of those 
rules to individuals in society would seem to be the duty of other 
departments. How far the power of giving the law may involve 
every other power, in cases where the constitution is silent, never 
has been, and perhaps never can be, definitely stated. 

The validity of this rescinding act, then, might well be doubted, 
were Georgia a single sovereign power. But Georgia cannot be 
26 



402 CASES ON CONSTITUTIONAL LAW. 

viewed as a single, imconnected, sovereign power, on wkose legis- 
lature no otker restrictions are imposed than may be found in its 
own constitution. She is a part of a large empire; she is a mem- 
ber of the American Union; and that union has a constitution the 
supremacy of which all acknowledge, and which imposes limits to 
the legislatures of the several States, which none claim a right to 
pass. The constitution of the United States declares that no State 
shall pass any bill of attainder, ex post facto law, or law impairing , 
the obligation of contracts. 

Does the case now under consideration come within this pro- 
hibitory section of the constitution? 

In considering this xerj interesting question, we immediately 
ask ourselves what is a contract? Is a grant a contract? 

A contract is a compact between two or more parties, and is 
either executory or executed. An executory contract is one in 
which a party binds himself to do, or not to do, a particular thing; 
such was the law under which the conveyance was made by the 
governor. A contract executed is one in which the object of con- 
tract is performed; and this, says Blackstone, differs in nothing 
from a grant. The contract between Georgia and the purchasers 
was executed by the grant, A contract executed, as well as one 
which is executory, contains obligations binding on the parties. A 
grant, in its own nature, amounts to an extinguishment of the 
■ right of the grantor, and implies a contract not to reassert that 
right. A party is, therefore, always estopped by his own grant 

Since, then, in fact, a grant is a contiact executed, the obliga- 
tion of which still continues, and since the constitution uses the 
general term contract, without distinguishing between those which 
are executory and those which are executed, it must be con- 
strued to comprehend the latter as well as the former. A law 
annulling conveyances between individuals, and declaring that the 
gTantors should stand seized of their former estates, notwithstand- 
ing those grants, would be as repugnant to the constitution as a 
law discharging the vendors of property from the obhgation of 
executing their contracts by conveyances. It would be strange 
if a contract to convey was secured by the constitution, while an 
absolute conveyance remained unprotected. 

If, under a fair construction of the constitution, grants are 
comprehended under the term contracts, is a grant from the 
State excluded from the operation of the provision? Is the clause 
to be considered as inhibiting the State from impairing the obli- 
gation of contracts between ^wo indi^-iduals, but as excluding 
from that inhibition contracts made with itself? 



FLETCHER v. PECK. 403 

The words themselves contain no such distinction. They are 
general, and are applicable to contracts of every description. If 
contracts made with the State are to be exempted from their opera- 
tion, the exception must arise from the character of the contracting 
party, not from the words which are employed. 

Whatever respect might have been felt for the state sovereign- 
ties, it is not to be disguised that the framers of the constitution 
viewed, with some apprehension, the violent acts which might 
grow out of the feelings of the moment; and that the people of 
the United States, in adopting that instrument, have manifested 
a determination to shield themselves and their property from the 
effects of those sudden and strong passions to which men are ex- 
posed. The restrictions on the legislative power of the States are 
obviously founded in this sentiment; and the Constitution of the 
United States contains what may be deemed a bill of rights for 
the people of each State. 

No State shall pass any bill of attainder, ex post facto law, or 
law. impairing the obligation of contracts. 

A bill of attainder may affect the life of an individual, or may 
confiscate his property, or may do both. 

In this form the power of the legislature over the lives and 
fortunes of individuals is expressly restrained. What motive, then, 
for implying, in words which import a general prohibition to im- 
pair the obligation of contracts, an exception in favor of the right 
to impair the obligation of those contracts into which the State 
may enter? 

The State legislatures can pass no ex post facto law. An ex 
post facto law is one which renders an act punishable in a manner 
in which it was not punishable when it was committed. Such a 
law may inflict penalties on the person, or may inflict pecuniary 
penalties which swell the public treasury. The legislature is then 
prohibited from passing a law by which a man's estate, or any part 
of it, shall be seized for a crime which was not declared, by some 
previous law, to render him liable to that punishment. Why, 
then, should violence be done to the natural meaning of words for 
the purpose of leaving to the legislature the power of seizing, for 
public use, the estate of an individual in the form of a law annul- 
ling the title by which he holds that estate? The court can per- 
ceive no sufficient grounds for making that distinction. This re- 
scinding act would have the effect of an ex post facto law. It 
forfeits the estate of Fletcher for a crime not committed by him- 
self, but by those from whom he purchased. This cannot be 
effected in the form of an ex post facto law, or bill of attainder; 



404 CASES ON CONSTITUTIONAL LAW. 

why, then, is it allowable in the form of a law annulling the 
original grant? 

The argument in favor of presuming an intention to except a 
case, not excepted by the words of the constitution, is susceptible 
of some illustration from a principle originally engrafted in that 
instrument, though no longer a part of it. The constitution, as 
passed, gave the courts of the United States Jurisdiction in suits 
brought against individual States. A State, then, which violated 
its own contract, was suable in the courts of the United States for 
that violation. Would it have been a defense in such a suit to 
say that the State had passed a law absolving itself from the con- 
tract? It is scarcely to be conceived that such a defense could be 
set up. And yet, if a State is neither restrained by the general 
principles of our pohtical institutions, nor by the words of the 
constitution, from impairing the obligation of its own contracts, 
such a defense would be a valid one. This feature is no longer 
found in the constitution; but it aids in the construction of those 
clauses with which it was originally associated. 

It is, then, the unanimous opinion of the court, that, in this 
case, the estate having passed into the hands of a purchaser for a 
valuable consideration, without notice, the State of Georgia was 
restrained, either by general principles which are common to our 
free institutions, or by the particular provisions of the Constitu- 
tion of the United States, from passing a*law whereby the estate 
of the plaintiff in the premises so purchased could be constitu- 
tionally and.leo-ally impaired and rendered null and void. 

In overruling the demurrer to the 3d plea, therefore, there is no 
error. . . . 

The question, whether the vacant lands within the United States 
became a joint property, or belonged to the separate States, was a 
momentous question, which, at one time, threatened to shake the 
American confederacy to its foundation. This important and 
dangerous contest has been compromised, and the compromise is 
not now to be disturbed. 

It is the opinion of the court, that the particular land stated in 
the declaration appears, from this special verdict, to lie within the 
State of Georgia, and that the State of Georgia had power to 
gTant it. 

Some difficulty was produced by the language of the covenant, 
and of the pleadings. It was doubted whether a State can be 
seized in fee of lands subject to the Indian title, and whether a 
decision that they were seized in fee might not be construed to 



STURGES V. CROWNINSHIELD. 405 

amount to a decision that their grantee might maintain an eject- 
ment for them, notwithstanding that title. 

The majority of the court is of opinion that the nature of the 
Indian title, which is certainly to be respected by all courts, until 
it be legitimately extinguished, is not such as to be absolutely re- 
pugnant to seizin in fee on the part of the State. 

Judgment affirmed, with costs. 

[Mk. Justice Johnson delivered a separate opinion.] 



STURGES V. CEOWNINSHIELD. 
4 Wheaton, 122. Decided 1819. 

This was an action of assumpsit, brought in the circuit court of 
Massachusetts, against the defendant, as the maker of two prom- 
issory notes, both dated at New York, on the 22d of March, 
1811, for the sum of $771.86 each, and payable to the plaintiff, 
one on the 1st of August, and the other on the 15th of August, 
1811. The defendant pleaded his discharge under "An act for 
the benefit of insolvent debtors and their creditors," passed by 
the legislature of New York, the 3d day of April, 1811. After 
stating the provisions of the said act, the defendant's plea averred 
his compliance with them, and that he was discharged, and a cer- 
tificate given to him the fifteenth day of February, 1812. To this 
plea there was a general demurrer, and Joinder. At the October 
term of the circuit court, 1817, the cause came on to be argued 
and heard on the said demurrer, and the following questions arose, 
to wit: — 

1. Whether, since the adoption of the constitution of the United 
States, any State has authority to pass a bankrupt law, or whether 
the power is exclusively vested in the congress of the United 
States? 

2. Whether the act of New York, passed the third day of April, 
1811, and stated in the plea in this case, is a bankrupt act, within 
the meaning of the constitution of the United States? 

3. Whether the act aforesaid is an act or law impairing the 
obligation of contracts, within the meaning of the constitution of 
the United States? 

4. Whether the plea is a good and sufficient bar of the plaint- 
iff's action? 



406 CASES ON CONSTITUTIONAL LAW. 

xA.nd after hearing counsel upon the questions, the Judges of 
the circuit court were opposed in opinion thereupon; and upon 
motion of the plaintiff's counsel, the questions were certified to 
the supreme court, for their final decision. . . . 

JIaeshall, C. J., delivered the opinion of the court. 

This case is adjourned from the court of the United States, for 
the first circuit and the district of Massachusetts, on several points 
on which the judges of that court were divided, which are stated 
in the record, for the opinion of this court. The first is:— 

"Whether, since the adoption of the constitution of the United 
States, any State has authority to pass a bankrupt law, or whether 
the power is exclusively vested in the congress of the United 
States? . . . 

Without entering further into the delicate inquiry respecting 
the precise limitations which the several grants of power to con- 
gress, contained in the constitution, may impose on the state 
legislatures, than is necessary for the decision of the question be- 
fore the court, it is sufficient to say, that, until the power to pass 
uniform lavrs on the subject of bankruptcies be exercised by con- 
gress, the States are not forbidden to pass a bankrupt law, pro- 
vided it contain no principle which violates the 10th section of 
the first article of the constitution of the United States. 

This opinion renders it totally unnecessary to consider the ques- 
tion whether the law of INTew York is, or is not, a bankrupt law. 

We proceed to the great question on which the cause must de- 
pend. Does the law of New York, which is pleaded in this case, 
impair the obligation of contracts, within the meaning of the 
constitution of the United States? This act liberates the person 
of the debtor, and discharges him from all liability for any debt 
previously contracted, on his surrendering his property in the 
manner it prescribes. In discussing the question whether a State 
is prohibited from passing such a law as this, our first inquiry is 
into the meaning of words in common use. What is the obliga- 
tion of a contract? and what will impair it? 

It would seem difficult to substitute words which are more in- 
telligible, or less liable to misconstruction, than those which are 
to be explained. A contract is an agreement in which a party 
undertakes to do, or not to do, a particular thing. The law binds 
him to perform his undertaking, and this is, of course, the obliga- 
tion of his contract. In the case at bar, the defendant has given 
his promissory note to pay the plaintiff a sum of money on or 
before a certain day. The contract binds him to pay that sum on 



STURGES V. CROWNINSHIELD. 407 

that clay; and this is its obligation. Any law which releases a 
part of this obligation, m. ' in the literal sense of the word, impair 
it. Much more must a law impair it which makes it totally in- 
valid, and entirely discharges it. 

The words of tlie constitution, then, are express, and incapable 
of being misunderstood. They admit of no variety of construc- 
tion, and are acknowledged to apply to that species of contract, 
an engagement between man and man, for the payment of money, 
which has been entered into by these parties. Yet the opinion 
that this law is not within the prohibition of the constitution, has 
been entertained by those who are entitled to great respect, and 
has been supported by arguments which deserve to be seriously 
considered. 

It has been contended, that as a contract can only bind a man 
to pay to the full extent of his property, it is an implied condition 
that he may be discharged on surrendering the whole of it. 

But it is not true that the parties have in view only the prop- 
erty in possession when the contract is formed, or that its obliga- 
tion does not extend to future acquisitions. Industry, talents, 
and integrity, constitute a fund which is as confidently trusted as 
property itself. Future acquisitions are, therefore, liable for con- 
tracts; and to release them from this liability impairs their obli- 
gation. 

It has been argued, that the States are not prohibited from 
passing bankrupt laws, and that the essential principle of such 
laws is to discharge the bankrupt from all past obligations; that 
the States have been in the constant practice of passing insolvent 
laws, such as that of New York, and if the framers of the con- 
stitution had intended to deprive them of this power, insolvent 
laws would have been mentioned in the prohibition; that the pre- 
vailing evil of the times, which produced this clause in the consti- 
tution, was the practice of emitting paper money, of making prop- 
erty which was useless to the creditor a discharge of his debt, and 
of changing the time of payment by authorizing distant install- 
ments. Laws of this description, not insolvent laws, constituted, 
it is said, the mischief to be remedied; and laws of this descrip- 
tion, not insolvent laws, are within the true spirit of the pro- 
hibition. 

The constitution does not grant to the States the power of pass- 
ing bankrupt laws, or any other power; but finds them in posses- 
sion of it, and may either prohibit its future exercise entirely, or 
restrain it so far as national policy may require. It has so far 
restrained it as to prohibit the passage of any law impairing the 



408 CASES ON CONSTITUTIONAL LAW. 

obligation of contracts. Altliougli^ tl:ten, the States may, until 
that power shall be exercised by congress, pass laws concerning 
bankrupts, yet they cannot constitutionally introduce into such 
4aws a clause which discharges the obligations the bankrupt has 
entered into. It is not admitted that without this principle, an 
act cannot be a bankrupt law; and if it were, that admission would 
not change the constitution, nor exempt such acts from its pro- 
hibitions. 

The argument drawn from the omission in the constitution to 
prohibit the States from passing insolvent laws, admits of several 
satisfactory answers. It was not necessary, nor would it have been 
safe, had it even been the intention of the framers of the consti- 
tution to prohibit the passage of all insolvent laws, to enumerate 
particular subjects to which the principle they intended to estab- 
lish should apply. The principle was the inviolability of con- 
tracts. This princij)le was to be protected in whatsoever form it 
might be assailed. To what purpose enumerate the particular 
modes of violation which should be forbidden, when it was in- 
tended to forbid all? Had an enumeration of all the laws which 
might violate contracts been attempted, the provision must have 
been less complete, and involved in more perplexity than it now is. 
The plain and simple declaration, that no State shall pass any 
law impairing the obligation of contracts, includes insolvent laws 
and all other laws, so far as they infringe the principle the con- 
vention intended to hold sacred, and no further. 

But a still more satisfactory answer to this argument is, that 
the convention did not intend to prohibit the passage of all in- 
solvent laws. To punish honest insolvency by imprisonment for 
life, and to make this a constitutional principle, would be an 
excess of inhumanity which will not readily be imputed to the 
illustrious patriots who framed our constitution, nor to the people 
who adopted it. The distinction between the obligation of a 
contract, and the remedy given by the legislature to enforce that 
obligation, has been taken at the bar, and exists in the nature of 
things. Without impairing the obligation of the contract, the rem- 
edy may certainly be modified as the wisdom of the nation shall 
direct. Confinement of the debtor may be a punishment for not 
performing his contract, or may be allowed as a means of inducing 
him to perform it. But the State may refuse to inflict this punish- 
ment, or may withhold this means, and leave the contract in full 
force. Imprisonment is no part of the contract, and simply to re- 
lease the prisoner does not impair its obligation. 

The argument which has been pressed most earnestly at the bar. 



STURGES V. CROWNINSHIELD. 409 

is, that, although all legislative acts which discharge the obliga- 
tion of a contract without performance, are within the very words 
of the constitution, yet an insolvent act, containing this principle, 
is not within its spirit, because such acts have been passed by 
colonial and state legislatures from the first settlement of the coun- 
try, and because we know from the history of the times, that the 
mind of the convention was directed to other laws, which were 
fraudulent in their character, which enabled the debtor to escape 
from his obligation, and yet hold his property; not to this, which 
is beneficial in its operation. 

Before discussing this argument, it may not be improper to 
premise that, although the spirit of an instrument, especially of a 
constitution, is to be respected not less than its letter, yet the 
spirit is to be collected chiefly from its words. It would be dan- 
gerous in the extreme to infer from extrinsic circumstances, that 
a case for which the words of an instrument expressly provide, 
shall be exempted from its operation. Where words conflict with 
each other, where the different clauses of an instrument bear upon 
each other, and would be inconsistent unless the natural and 
common import of words be varied, construction becomes neces- 
sary, and a departure from the obvious meaning of words is justi- 
fiable. But if, in any case, the plain meaning of a provision, not 
contradicted by any other provision in the same instrument, is to 
be disregarded, because we believe the framers of that instrument 
could not intend what they say, it must be one in which the ab- 
surdity and injustice of applying the provision to the case, would 
be so monstrous that all mankind would, without hesitation, unite 
in rejecting the application. 

This is certainly not such a case. It is said the colonial and 
state legislatures have been in the habit of passing laws of this 
description for more than a century; that they have never been 
the subject of complaint, and, consequently, could not be within 
the view of the general convention. 

The fact is too broadly stated. The insolvent laws of many, 
indeed, of by far the greater number of the States, do not contain 
this principle. They discharge the person of the debtor, but 
leave his obligation to pay in full force. To this the constitution 
is not opposed. 

But, were it even true that this principle had been introduced 
generally into those laws, it would not justify our varying the con- 
struction of the section. Every State in the Union, both while 
a colony and after becoming independent, had been in the prac- 
tice of issuing paper money; yet this practice is, in terms, prohib- 



410 CASES ON CONSTITUTIONAL LAW. 

ited. If the long exercise of the poorer to emit hills of credit did 
not restrain the convention from prohibiting its future exercise, 
neither can it he said that the long exercise of the power to impair 
the obligation of contracts, should prevent a similar prohibition. 
It is not admitted that the prohibition is more express in the one 
case than in the other. It does not, indeed, extend to insolvent 
laws by name, because it is not a law by name, but a principle 
which is to be forbidden; and this principle is described in as ap- 
propriate terms as our language affords. 

Neither, as we conceive, will any admissible rule of construc- 
tion justify us in limiting the prohibition under consideration, 
to the particular laws which have been described at the bar, and 
which furnished such cause for general alarm. What were those 
laws? 

We are told they were such as grew out of the general distress 
following the war in which our independence was established. To 
relieve this distress paper money was issued; worthless lands, 
and other property of no use to the cre-ditor, were made a tender 
in payment of debts; and the time of payment, stipulated in 
the contract, was extended by law. These were the peculiar evils 
of the day. So much mischief was done, and so much more was 
apprehended, that general distrust prevailed, and all confidence 
between man and man was destroyed. To laws of this description 
therefore, it is said, the prohibition to pass laws impairing the 
obligation of contracts ought to be confined. 

Let this argument be tried by the words of the section under 
consideration. Was this general prohibition intended to prevent 
paper money? We are not allowed to say so, because it is expressly 
provided, that no State shall "emit bills of credit;" neither could 
these words be intended to restrain the States from enabling 
debtors to discharge their debts by the tender of property of no 
real value to the creditor, because for that subject also particular 
provision is made. Xothing but gold and silver coin can be made 
a tender in pajonent of debts. 

It remains to inquire, whether the prohibition under considera- 
tion could be intended for the single case of a law directing that 
judgments should be carried into execution by instalments? 

This question will scarcely admit of discussion. If this was 
the only remaining mischief against which the constitution in- 
tended to provide, it would undoubtedly have been, like paper 
money and tender laws, expressly forbidden. At any rate, terms 
more directly applicable to the subject, more appropriately ex- 
pressing the intention of the convention, would have been used. 



STURGES V. CROWNINSHIELD. 411 

It seems scarcely possible to suppose that the framers of the con- 
stitution, if intending to prohibit only laws authorizing the pay- 
ment of debts by instalments, would have expressed that inten- 
tion by saying, "no State shall pass any law impairing the obliga- 
tion of contracts." No men would so express such an intention. 
No men would use terms embracing a whole class of laws, for the 
purpose of designating a single individual of that class. No court 
can be justified in restricting such comprehensive words to a par- 
ticular mischief to which no allusion is made. 

The fair, and we think, the necessary construction of the sen- 
tence, requires, that we should give these words their full and 
obvious meaning. A general dissatisfaction with that lax system 
of legislation which followed the war of our Eevolution, undoubt- 
edly directed the mind of the convention to this subject. It is 
probable that laws such as those which have been stated in argu- 
ment, produced the loudest complaints, were most immediately 
felt. The attention of the convention, therefore, was particularly 
directed to paper money, and to acts which enabled the debtor to 
discharge his debt otherwise than was stipulated in the contract. 
Had nothing more been intended, nothing more would have been 
expressed. But, in the opinion of the convention, much more re- 
mained to be done. The same mischief might be eifected by other 
means. To restore public confidence completely, it was neces- 
sary not only to prohibit the use of particular means by which it 
might be effected, but to prohibit the use of any means by which 
the same mischief might be produced. The convention appears 
to have intended to establish a great principle, that contracts 
should be inviolable. The constitution, therefore, declares, that 
no State shall pass "any law impairing the obligation of contracts." 

If, as we think, it must be admitted that this intention might 
actuate the convention; that it is not only consistent with, but 
is apparently manifested by, all that part of the section which 
respects this subject; that the words used are well adapted to the 
expression of it; that violence would be done to their plain mean- 
ing by understanding them in a more limited sense; those rules of 
construction, which have been consecrated by the wisdom of ages, 
compel us to say, that these words prohibit the passage of any 
law discharging a contract without performance. 

By way of analogy, the statutes of limitations, and against 
usury, have been referred to in argument; and it has been sup- 
posed that the construction of the constitution, which this opin- 
ion maintains, would apply to them also, and must therefore be 
too extensive to be correct. 



413 CASES ON CONSTITUTIONAL LAW. 

We do not think so. Statutes of limitations relate to the reme- 
dies which are furnished in the courts. They rather establish, 
that certain circumstances shall amount to evidence that a con- 
tract has been performed, than dispense with its performance. 
If, in a State where six years may be pleaded in bar to an action 
of assumpsit, a law should pass declaring that contracts already in 
existence, not barred by the statute, should be construed to be 
within it, there could be little doubt of its unconstitutionality. 

So with respect to the laws against usury. If the law be, that 
no person shall take more than six per centum per annum for 
the use of money, and that, if more be reserved, the contract shall 
be void, a contract made thereafter reserving seven per cent., 
would have no obligation in its commencement; but if a law 
should declare that contracts already entered into, and reserving 
the legal interest, should be usurious and void, either in the whole 
or in part, it would impair the obligation of the contract, and 
would be clearly unconstitutional. 

This opinion is confined to the case actually under considera- 
tion. It is confined to a case in which a creditor sues in a court, 
the proceedings of which the legislature, whose act is pleaded, 
had not a right to control, and to a case where the creditor had 
not proceeded to execution against the body of his debtor, within 
the State whose law attempts to absolve a confined insolvent debtor 
from his obligation. "When such a case arises it will be consid- 
ered. 

It is the opinion of the court, that the act of the State of Xew 
York, which is pleaded by the defendant in this cause, so far as 
it attempts to discharge this defendant from the debt in the 
declaration mentioned, is contrary to the constitution of the 
United States, and that the plea is no bar to the action 



THE TRUSTEES OF DARTMOUTH COLLEGE v. WOOD- 
WARD. 

4 Wheaton, 518. Decided 1819. 

[The facts are sufficiently stated in the opinion of the court.] 

Maeshall, C. J., delivered the opinion of the court, as fol- 
lows: 

This is an action of trover, brought by the Trustees of Dart- 
mouth College, against William H. Woodward, in the state court 



DARTMOUTH COLLEGE v. WOODWARD. 413 

of New Hampshire, for the book of records, corporate seal, and 
other corporate property, to which the plaintiffs allege themselves 
to be entitled. 

A special verdict, after setting out the rights of the parties, 
finds for the defendant, if certain acts of the legislature of New 
Hampshire, passed on the 27th of June, and on the 18th of De- 
ceanber, 1816, be valid, and binding on the trustees without their 
assent, and not repugnant to the cons-titution of the United States; 
otherwise it finds for the plaintiffs. 

The superior court of judicature of New Hampshire rendered 
a judgment upon this verdict for the defendant, which judgment 
has been brought before this court by writ of error. The single 
question now to be considered is, do the acts to which the verdict 
refers violate tlie constitution of the United States? 

This c©urt can be insensible neither to the magnitude nor to 
the delicacy of this question. The validity of a legislative act is 
to be examined; and the opinion of the highest law tribunal of 
a State is to be revised; an opinion which carries with it intrinsic 
evidence of the diligence, of the ability, and the integrity with 
which it was formed. On more than one occasion this court has 
expressed the cautious circumspection with which it approaches 
the consideration of such questions; and has declared that, in no 
doubtful case, would it pronounce a legislative act to be contrary 
to the constitution. But the American people have said, in the 
constitution of the United States, that "no State shall pass any 
bill of attainder, ex post facto law, or law impairing the obliga- 
tion of contracts." In the same instrument they have also said, 
"that the judicial power shall also extend to all cases in law 
and equity arising under the constitution." On the judges of 
this court, then, is imposed the high and solemn duty of protect- 
ing, from even legislative violation, those contracts which the 
constitution of our country has placed beyond legislative control; 
and, however irksome the task may be, this is a duty from which 
we dare not shrink. 

The title of the plaintiffs originates in a charter dated the 13th 
day of December, in the year 1769, incorporating twelve persons 
therein mentioned, by the name of "The Trustees of Dartmouth 
College," granting to them and their successors the usual cor- 
porate privileges and powers, and authorizing the trustees, who 
are to govern the college, to fill up all vacancies which may be 
created in their own body. 

The defendant claims under three acts of the legislature of New 
Hampshire, the most material of which was passed on the 27th of 



414 CASES ON CONSTITUTIONAL LAW. 

June, 1816, and is entitled "An act to amend the charter and 
enlarge and improve the corporation of Dartmouth College." 
Among other alterations in the charter, this act increases the 
number of trustees to twenty-one, gives the appointment of the 
additional members to the executive of the State, and creates a 
board of overseers, with power to inspect and control the most 
important acts of the trustees. This board consists of twenty- 
five persons. The president of the senate, the speaker of the 
house of representatives of Kew Hampshire, and the governor 
and lieutenant-governor of Vermont, for the time being, are to 
be members ex officio. The board is to be completed by the gov- 
ernor and council of New Hampshire, who are also empowered 
to fill all vacancies which may occur. The acts of the 18th and 
26th of December are supplemental to that of the 27th of June, 
and are principally intended to carry that act into effect. 

The majority of the trustees of the college have refused to 
accept this amended charter, and have brought this suit for the 
corporate property, which is in possession _of a person holding 
by virtue of the acts which have been stated. 

It can require no argument to prove that the circumstances of 
this case constitute a contract. An application is made to the 
crown for a charter to incorporate a religious and literary institu- 
tion. In the application it is stated that large contributions have 
been made for the object, which will be conferred on the cor- 
poration as soon as it shall be created. The charter is granted, 
and on its faith the property is conveyed. Surely in this transac- 
tion every ingredient of a complete and legitimate contract is to 
be found. 

The points for consideration are, 

1. Is this contract protected by the constitution of the United 
States? 

2. Is it impaired by the acts under which the defendant holds? 

1. On the first point it has been argued that the word "con- 
tract," in its broadest sense, would comprehend the political rela- 
tions between the government and its citizens, would extend to 
offices held within a State for state purposes, and to many of 
those laws concerning civil institutions, which must change with 
circumstances, and be modified by ordinary legislation; which 
deeply concern the public, and which, to preserve good govern- 
ment, the public judgment must control. That even marriage 
is a contract, and its obligations are affected by the laws respect- 
ing divorces. That the clause in the constitution, if construed in 
its greatest latitude, would prohibit these laws. Taken in its 



DARTMOUTH COLLEGE v. "WOODWARD. 415 

broad, unlimited sense, the clause would be an unprofitable and 
vexatious interference with the internal concerns of a State, would 
unnecessarily and unwisely embarrass its legislation, and render 
immutable those civil institutions which are established for pur- 
j)Oses of internal government, and which, to subserve those pur- 
poses, ought to vary with varying circumstances. That as the 
framers of the constitution could never have intended to insert 
in that instrument a provision so unnecessary, so mischievous, 
and so repugnant to its general spirit, the term "contract" must 
be understood in a more limited sense. That it must be under- 
stood as intended to guard against a power of at least doubtful 
utility, the abuse of which had been extensively felt, and to re- 
strain the legislature in future from violating the right to prop- 
erty. That anterior to the formation of the constitution, a course 
of legislation had prevailed in many, if not in all, of the States, 
which weakened the confidence of man in man, and embarrassed 
all transactions between individuals, by dispensing with a faith- 
ful performance of engagements. To correct this mischief, by 
restraining the power which produced it, the State legislatures 
were forbidden "to pass any law impairing the obligation of con- 
tracts/' that is, of contracts respecting property, under which 
some individual could claim a right to something beneficial to 
himself; and that since the clause in the constitution must in 
construction receive some limitation, it may be confined, and ought 
to be confined, to cases of this description; to cases within the 
mischief it was intended to remedy. 

The general correctness of these observations cannot be con- 
troverted. That the framers of the constitution did not intend 
to restrain the States in the regulation of their civil institutions, 
adopted for internal government, and that the instrument they 
have given us is not to be so construed, may be admitted. Tlie 
provision of the constitution never has been understood to em- 
brace other contracts than those which respect property or some 
object of value, and confer rights which may be asserted in a 
court of justice. It has never been understood to restrict the gen- 
eral right of the legislature to legislate on the subject of divorces. 
Those acts enable some tribunal, not to impair a marriage con- 
tract, but to liberate one of the parties because it has been broken 
by the other. When any State legislature shall pass an act an- 
nulling all marriage contracts, or allowing either party to annul 
it without the consent of the other, it will be time enough to 
inquire whether such an act be constitutional. 

The parties in this case differ less on general principles, less 



416 CASES ON CONSTITUTIONAL LAW. 

on the true constnictioii of the constitution in the abstract, than 
on the application of those principles to this case, and on the true 
construction of the charter of 1769. This is the point on which 
the cause essentially depends. If the act of incorporation be a 
grant of political power, if it creates a civil institution to be em- 
ployed in the administration of the government, or if the funds 
of the college be pu.blic property, or if the State of New Hamp- 
shire, as a government, be alone interested in its transactions, the 
subject is one in which the legislature of the State may act 
according to its own judgment, unrestrained by any limitation 
of its power imposed by the constitution of the United States. 

But if this be a private eleemosynary institution, endowed with 
a capacity to take property for objects unconnected with govern- 
ment, whose funds are bestowed by individuals on the faith of 
the charter; if the donors have stipulated for the future disposi- 
tion and management of those funds in the manner prescribed 
by themselves; there may be more difficulty in the case, although 
neither the persons who have made these stipulations, nor those 
for whose benefit they were made, should be parties to the cause. 
Those who are no longer interested in the property may yet retain 
such an interest in the preservation of their own arrangements 
as to have a right to insist that those arrangements shall be held 
sacred. Or, if they have themselves disappeared, it becomes a 
subject of serious and anxious inquiry whether those whom they 
have legally empowered to represent them forever may not assert 
all the rights which they possessed while in being; whether, if 
they be without personal representatives who may feel injured 
by a violation of the compact, the trustees be not so completely 
their representatives in the eye of the law as to stand in their 
place, not only as respects the government of the college, but 
also as respects the maintenance of the college charter. 

It becomes then the duty of the court most seriously to ex- 
amine this charter, and to ascertain its true character. 

From the instrument itself it appears that about the year 1754 
the Eev. Eleazer Wheelock established at his own expense, and 
on his own estate, a charity school for the instruction of In- 
dians in the Christian religion. The success of this institution 
inspired him with the design of soliciting contributions in Eng- 
land for carryng on and extending his undertaking. In this pious 
work he employed the Eev. Nathaniel Whitaker, who, by virtue 
of a power of attorney from Dr. Wlieelock, appointed the Earl 
of Dartmouth and others trustees of the money which had been 
and should be contributed; which appointment Dr. Wheelock 



DARTMOUTH COLLEGE v. WOODWARD. 417 

confirmed by a deed of trust authorizing the trustees to fix on a 
site for the college. They determined to establish the school on 
Connecticut Eiver, in the western part of New Hampshire; that 
situation being supposed favorable for carrying on the original 
design among the Indians, and also for promoting learning among 
the English, and the proprietors in the neighborhood having made 
large offers of land on condition that the college should there 
be placed. Dr. Wheelock then applied to the crown for an act 
of incorporation, and represented the expediency of appointing 
those whom he had, by his last will, named as trustees in Amer- 
ica, to be members of the proposed corporation. "In considera- 
tion of the premises," "for the education and instruction of the 
youth of the Indian tribes," &c., "and also of English youth and 
any others," the charter was granted, and the Trustees of Dart- 
mouth College were by that name created a body corporate, with 
power, for the use of the said college, to acquire real and personal 
property, and to pay the president, tutors, and other officers of 
the college such salaries as they shall allow. 

The charter proceeds to appoint Eleazer Wheelock, "the founder 
of said college," president thereof, with power by his last will to 
appoint a successor, who is to continue in office until disapproved 
by the trustees. In cases of vacancy, the trustees may appoint 
a president, and in case of the ceasing of a president, the senior 
professor or tutor, being one of the trustees, shall exercise the 
office until an appointment shall be made. The trustees have 
power to appoint and displace professors, tutors, and other offi- 
cers, and to supj)ly any vacancies which may be created in their 
own body by death, resignation, removal, or disability; and also 
to make orders, ordinances, and laws for the government of the 
college, the same not being repugnant to the laws of Great Brit- 
ain or of New Hampshire, and not excluding any person on ac- 
count of his speculative sentiments in religion, or his being 
of a religious profession different from that of the trustees. 

This charter M^as accepted, and the property, both real and 
personal, which had been contributed for the benefit of the col- 
lege, was conveyed to and vested in the corporate body. 

From this brief review of the most essential parts of the char- 
ter, it is apparent that the funds of the college consisted entirely 
of ])rivate donations. It is, jjerhaps, not very important who were 
the donors. The probability is that the Earl of Dartmouth and 
the other trustees in England were, in fact, the largest contrib- 
utors. Yet the legal conclusion from the facts recited in tiie 
27 



418 CASES ON CONSTITUTIONAL LAW. 

charter would probably be, that Dr. Wheelock was the founder 
of the college. 

The origin of the institution was, undoubtedly, the Indian 
charity school established by Dr. Wheelock at his own expense. 
It was at his instance, and to enlarge this school, that contri- 
butions were solicited in England. The person soliciting these 
contributions was his agent; and the trustees, who received the 
money, were appointed by and acted under his authority. It is 
not too much to say that the funds were obtained by him in 
trust, to be applied by him to the purposes of his enlarged school. 
The charter of incorporation was granted at his instance. The 
persons named by him in his last will as the trustees of his 
charity school compose a part of the corporation, and he is de- 
clared to be the founder of the college and its president for life. 
Were the inquiry material, we should feel some hesitation in 
saying that Dr. Wlieelock was not, in law, to be considered as 
the founder (1 Bl. Com., 481) of this institution, and as pos- 
sessing all the rights appertaining to that character. But be 
this as it may, Dartmouth College is really endowed by priyate 
individuals, who have bestowed their funds for the propagation 
of the Christian religion among the Indians, and for the promo- 
tion of piety and learning generally. From these funds the 
salaries of the tutors are drawn, and these salaries lessen the 
expense of education to the students. It is then an eleemosy- 
nary (1 Bl. Com., 471) and, as far as respects its funds, a private 
corporation. 

Do its objects stamp on it a different character? Are the trus- 
tees and professors public officers, invested with any portion of 
political power, partaking in any degree in the administration 
of civil government, and performing duties which flow from the 
sovereign authority? 

That education is an object of national concern and a proper 
subject of legislation, all admit. That there may be an institu- 
tion founded by government and placed entirely under its imme- 
diate control, the officers of which would be public officers, amen- 
able exclusively to government, none will deny. But is Dart- 
m_outh College such an institution? Is education altogether in 
the hands of government? Does every teacher of youth become 
a public officer, and do donations for tlie purpose of education 
necessarily become public property, so far that the will of the 
legislature, not the will of the donor, becomes the law of the 
donation? These questions are of serious moment to society, and 
deserve to be well considered. 



DARTMOUTH COLLEGE v. WOODWARD. 419 

Dr. Wheelock, as the keeper of his charity school, instructing 
the Indians in the art of reading and in our holy religion, sus- 
taining them at his own expense and on the voluntary contribu- 
tions of the charitable, could scarcely be considered as a public 
officer, exercising any portion of those duties which belong to 
government; nor could the legislature have supposed that his 
private funds, or those given by others, were subject to legisla- 
tive management because they were applied to the purposes of 
education. When, afterwards, his school was enlarged, and the 
liberal contributions made in England and in America enabled 
him to extend his cares to the education of the youth of his own 
country, no change was wrought in his own character or in the 
nature of his duties. Had he employed assistant tutors with the 
funds contributed by others, or had the trustees in England 
established a school with Dr. Wheelock at its head, and paid 
salaries to him and his assistants, they would still have been pri- 
vate tutors; and the fact that they were employed in the educa- 
tion of youth could not have converted them into public ofiicers 
concerned in the administration of public duties, or have given 
the legislature a right to interfere in the management of the 
fund. The trustees, in whose care that fund was placed by the 
contributors, would have been permitted to execute their trust 
uncontrolled by legislative authority. 

Whence, then, can be derived the idea that Dartmouth College 
has become a public institution, and its trustees public officers, 
exercising powers conferred by the public for public objects? Not 
from the source whence its funds were drawn, for its foundation 
is purely private and eleemosynary, — not from the application of 
those funds; for money may be given for education, and the 
persons receiving it do not, by being employed in the education 
of youth, become members of the civil government. Is it from 
the act of incorporation? Let this subject be considered. 

A corporation is an artificial being, invisible, intangible, and 
existing only in contemplation of law. Being the mere creature 
of law, it possesses only those properties which the charter of its 
creation confers upon it, either expressly or as incidental to its 
very existence. These are such as are supposed best calculated 
to effect the object for which it was created. Among the most 
important are immortality, and, if the expression may be allowed, 
individuality; properties, by which a perpetual succession of many 
persons are considered as the same, and may act as a single in- 
dividual. They enable a corporation to manage its own affairs, 
and to hold property without the perplexing intricacies, the haz- 



420 CASES ON CONSTITUTIONAL LAW. 

ardous and endless necessity, of perpetual conyeyances for the 
purpose of transmitting it from hand to hand. It is chiefly for 
the purpose of clothing bodies of men in succession with these 
qualities and capacities that corporations were invented and are 
in use. By these means, a perpetual succession of individuals 
are capable of acting for the promotion of the particular object, 
like one immortal being. But this being does not share in the 
civil government of the country, unless that be the purpose for 
which it Vi^as created. Its immortality no more confers on it po- 
litical power or a political character than immortality would con- 
fer such power or character on a natural person. It is no more 
a State instrument than a natural person exercising the same 
powers would be. If, then, a natural person, employed by indi- 
viduals in the education of youth, or for the government of a 
seminar}^ in which youth is educated, would not become a public 
officer, or be considered as a member of the civil government, how 
is it that this artificial being, created by law for the purpose of 
being employed by the same individuals for the same purposes, 
should become a part of the civil government of the country? Is 
it because its existence, its capacities, its powers, are given by 
law? Because the government has given it the power to take and 
to hold property in a particular form and for particular purposes, 
has the government a consequent right substantially to change 
that form, or to vary the purposes to which the property is to be 
applied? This principle has never been asserted or recognized, 
and is supported by no authority. Can it derive aid from reason? 
The objects for which a corporation is created are universally 
such as the government wishes to promote. They are deemed 
beneficial to the countr}^; and this benefit constitutes the con- 
sideration, and, in most cases, the sole consideration of the grant. 
In most eleemosynary institutions, the object would be difficult, 
perhaps unattainable, without the aid of a charter of incorpora- 
tion. Charitable or public-spirited individuals, desirous of mak- 
ing permanent appropriations for charitable or other useful pm'- 
poses, find it impossible to effect their design securely and cer- 
tainly without an incorporating act. They apply to the govern- 
ment, state their beneficent object, and offer to advance the 
money necessary for its accomplishment, provided the govern- 
ment will confer on the instrument which is to execute their de- 
signs the capacity to execute them. The proposition is considered 
and approved. The benefit to the public is considered as an ample 
compensation for the faculty it confers, and the corporation is 
created. If the advantages to the public constitute a full com- 



DARTMOUTH COLLEGE v. WOODWARD. 431 

pensation for the faculty it gives^ there can be no reason for exact- 
ing a further compensation, by claiming a right to exercise over 
this artificial being a power which changes its nature, and touches 
the fund for the security and application of which it was created. 
There can be no reason for implying in a charter, given for a val- 
uable consideration, a power which is not only not expressed, but 
is in direct contradiction to its express stipulations. , 

From the fact, then, that a charter of incorporation has been 
granted, nothing can be inferred which changes the character of 
the institution, or transfers to the government any new power 
over it. The character of civil institutions does not grow out 
of their incorporation, but out of the manner in which they are 
formed, and the objects for which they are created. The right to 
change them is not founded on their being incorporated, but on 
their being the instruments of government, created for its pur- 
pose. The same institutions, created for the same objects, though 
not incorporated, would be public institutions, and, of course, 
be controllable by the legislature. The incorporating act neither 
gives nor prevents this control. NeitTier, in reason, can the in- 
corporating act change the character of a private eleemosynary 
institution. 

We are next led to the inquiry, for whose benefit the property 
given to Dartmouth College was secured? The counsel for the 
defendant have insisted that the beneficial interest is in the people 
of New Hampshire. The charter, after reciting the preliminary 
measures which had been taken, and the application for an act 
of incorporation, proceeds thus: "Know ye, therefore, that we, 
considering the premises, and being willing to encourage the 
laudable and charitable design of spreading Christian knowledge 
among the savages of our American wilderness, and also that the 
best means of education be established, in our province of New 
Hampshire, for the benefit of said province, do, of our special 
grace," etc. Do these expressions bestow on New Hampshire 
any exclusive right to the property of the college, any exclusive 
interest in the labors of the professors? Or do they merely indi- 
cate a willingness that New Hampshire should enjoy those ad- 
vantages which result to all from the establishment of a seminary 
of learning in the neighborhood? On this point we think it 
impossible to entertain a serious doubt. The words themselves, 
unexplained by the context, indicate that the "benefit intended 
for the province" is that which is derived from "establishing the 
best means of education therein;" that is, from establishing in 
the province Dartmouth College as constituted by the charter. 



423 CASES ON CONSTITUTIONAL LAW. 

But if these words, considered alone, could admit of doubt, that 
doubt is completely removed by an inspection of the entire in- 
strument. 

The particular interests of New Hampshire never entered into 
the mind of the donors, never constituted a motive for their dona- 
tion. The propagation of the Christian religion among the sav- 
ages, and the dissemination of useful knowledge among the youth 
of the country, were the avowed and the sole objects of their 
contributions. In these New Hampshire would participate; but 
nothing particular or exclusive was intended for her. Even the 
site of the college was selected, not for the sake of New Hamp- 
shire, but because it was "most subservient to the great ends in 
view," and because liberal donations of land were offered by the 
proprietors on condition that the institution should be there estab- 
lished. The real advantages from the location of the college are, 
perhaps, not less considerable to those on the west than to those 
on the east side of Connecticut Eiver. The clause which con- 
stitutes the incorporation, and expresses the objects for which it 
was made, declares those objects to be the instruction of the 
Indians, "and also of English youth and any others." So that 
the objects of the contributors and the incorporating act were 
the same, — ^the promotion of Christianity and of education gener- 
ally, not the interests of New Hampshire particularly. 

From this review of the charter, it appears that Dartmouth 
College is an eleemosynary institution, incorporated for the pur- 
pose of perpetuating the application of the bounty of the donors 
to the specified objects of that bounty; that its trustees or gov- 
ernors were originally named by the founder, and invested with 
the power of perpetuating themselves; that they are not public 
officers, nor is it a civil institution, participating in the admin- 
istration of government; but a charity school, or a seminary of 
education, incorporated for the preservation of its property, and 
the perpetual application of that property to the objects of its 
creation. 

Yet a question remains to be considered of more real difficulty, 
on which more doubt has been entertained than on all that have 
been discussed. The founders of the college, at least those whose 
contributions were in money, have parted with the property be- 
stowed upon it, and their representatives have no interest in that 
property. The donors of land are equally without interest so 
long as the corporation shall exist. Could they be found, they 
are unaffected by any alteration in its constitution, and probably 
regardless of its form or even of its existence. The students are 



DARTMOUTH COLLEGE v. WOODWARD. 433 

fluctuating, and no individual among our youtli has a vested in- 
terest in the institution which can be asserted in a court of Jus- 
tice. Neither the founders of the college, nor the youth for 
whose benefit it was founded, complain of the alteration made in 
its charter, or think themselves injured by it. The trustees alone 
complain, and the trustees have no beneficial interest to be pro- 
tected. Can this be such a contract as the constitution intended 
to withdraw from the power of State legislation? Contracts, the 
parties to which have a vested beneficial interest, and those only, 
it has been said, are the objects about which the constitution is 
solicitous, and to which its protection is extended. 

The court has bestowed on this argument the most deliberate 
consideration, and the result will be stated. Dr. Wheelock, act- 
ing for himself and for those who, at his solicitation, had made 
contributions to his school, applied for this charter, as the instru- 
ment which should enable him and them to perpetuate their 
beneficent intention. It was granted. An artificial, immortal 
being was created by the crown, capable of receiving and distrib- 
uting forever, according to the will of the donors, the donations 
which should be made to it. On this being, the contributions 
which had been collected were immediately bestowed. These gifts 
were made, not indeed to make a profit for the donors or their - 
posterity, but for something, in their opinion, of inestimable 
value; for something which they deemed a full equivalent for the 
money with which it was purchased. The consideration for which 
they stipulated, is the perpetual application of the fund to its 
object, in the mode prescribed by themselves. Their descendants 
may take no interest in the preservation of this consideration. 
But in this respect their descendants are not their representa- 
tives. They are represented by the corporation. The corpora- 
tion is the assignee of their rights, stands in their place, and dis- 
tributes their bounty, as they would themselves have distributed 
it had they been immortal. So with respect to the students who 
are to derive learning from this source. The corporation is a 
trustee for them also. Their potential rights, which, taken dis- 
tributively, are imperceptible, amount collectively to a most im- 
portant interest. These are, in the aggregate, to be exercised, as- 
serted, and protected by the corporation. They were as completely 
out of the donors, at the instant of their being vested in the 
corporation, and as incapable of being asserted by the students, as 
at present. 

According to the theory of the British constitution, their par- 
liament is omnipotent. To annul corporate rights might give a 



424 CASES ON CONSTITUTIONAL LAW. 

shock to public opinion, which that government has chosen to 
avoid; but its power is not questioned. Had parliament, imme- 
diately after the emanation of this charter and the execution 
of those conveyances which followed it, annulled the instrument, 
so that the living donors would have witnessed the disappoint- 
ment of their hopes, the perfidy of the transaction would have 
been universally acknowleged. Yet then, as now, the donors would 
have had no interest in the property; then, as now, those who 
might be students would have had no rights to be violated; then, 
as now, it might be said that the trustees, in whom the rights 
of all were combined, possessed no private, individual, beneficial 
interest in the property confided to their protection. Yet the 
contract would at that time have been deemed sacred by all. What 
has since occurred to strip it of its inviolability? Circumstances 
have not changed it. In reason, in Justice, ajid in law, it is 
now what it was in 1769. 

This is plainly a contract to which the donors, the trustees, and 
the crown (to whose rights and obligations New Hampshire suc- 
ceeds) were the original parties. It is a contract made on a val- 
uable consideration. It is a contract for the security and disposi- 
tion of property. It is a contract on the faith of which real and 
personal estate has been conveyed to the corporation. It is then 
a contract within the letter of the constitution, and within its 
spirit also, unless the fact that the property is invested by the 
donors in trustees for the promotion of religion and education, 
for the benefit of persons who are perpetually changing, though 
the objects remain the same, shall create a particular exception, 
taking this case out of the prohibition contained in the consti- 
tution. 

It is more than possible that the preservation of rights of this 
description was not particularly in the view of the framers of 
the constitution when the clause under consideration was intro- 
duced into that instrument. It is probable that interferences of 
more frequent recurrence, to which the temptation was stronger 
and of which the mischief was more extensive, constituted the 
great motive for imposing this restriction on the State legisla- 
tures. But although a particular and a rare case may not in itself 
be of sufficient magnitude to induce a rule, yet it must be governed 
by the rule, when established, unless some plain and strong reason 
for excluding it can be given. It is not enough to say that this 
particular case was not in the mind of the convention when the 
article was framed, nor of the American people when it was 
adopted. It is necessary to go farther, and to say that, had this 



DARTMOUTH COLLEGE v. WOODWARD. 425 

particular case been suggested, the language would have been so 
varied as to exclude it, or it would have been made a special 
exception. The case, being within the words of the rule, must 
be within its operation likewise, unless there be something in the 
literal construction so obviously absurd, or mischievous, or repug- 
nant to the general spirit of the instrument as to justify those 
who expound the constitution in making it an exception. 

On what safe and intelligible ground can this exception stand? 
There is no expression in the constitution, no sentiment delivered 
by its contemporaneous expounders, which would justify us in 
making it. In the absence of all authority of this kind, is there, 
in the nature and reason of the case itself, that which would sus- 
tain a construction of the constitution not warranted by its words? 
Are contracts of this description of a character to excite so little 
interest that we must exclude them from the provisions of the 
constitution, as being unworthy of the attention of those who 
framed the instrument? Or does public policy so imperiously de- 
mand their remaining exposed to legislative alteration as to com- 
pel us, or rather permit us to say, that these words, which were 
introduced to give stability to contracts, and which in their plain 
import comprehend this contract, must yet be so construed as 
to exclude it? 

Almost all eleemosynary corporations, those which are created 
for the promotion of religion, of charity, or of education, are of the 
same character. The laAv of this case is the law of all. In every lit- 
erary or charitable institution, unless the objects of the bounty be 
themselves incorporated, the whole legal interest is in trustees, and 
can be asserted only by them. The donors, or claimants of the 
bounty, if they can appear in court at all, can appear only to 
complain of the trustees. In all other situations, they are identi- 
fied with, and personated by, the trustees, and their rights are to 
be defended and maintained by them. Keligion, charity, and edu- 
cation are, in the law of England, legatees or donees, capable of 
receiving bequests or donations in this form. They appear in 
court, and claim or defend by the corporation. Are they of so 
little estimation in the United States that contracts for their bene- 
fit must be excluded from the protection of words which in their 
natural import include them? Or do such contracts so necessarily 
require new modelling by the authority of the legislature that the 
ordinary rules of construction must be disregarded in order to 
leave them exposed to legislative alteration? 

All feel that these objects are not deemed unimportant in the 
United States. The interest which this case has excited proves 



426 CASES ON CONSTITUTIONAL LAW. 

that they are not. The framers of the constitution did not deem 
them unworthy of its care and protection. They have, though 
in a different mode, manifested their respect for science by re- 
serving to the government of the Union the power "to promote 
the progress of science and useful arts, by securing for limited 
times, to authors and inventors, the exclusive right to their respect- 
ive writings and discoveries." They have so far withdrawn science 
and the useful arts from the action of the State governments. 
Why, then, should they be supposed so regardless of contracts 
made for the advancement of literature as to intend to exclude 
them from provisions made for the security of ordinary contracts 
between man and man? No reason for making this supposition 
is perceived. 

If the insignificance of the object does not require that we 
should exclude contracts respecting it from the protection of the 
constitution; neither, as we conceive, is the policy of leaving 
them subject to legislative alteration so apparent as to require a 
forced construction of that instrument in order to effect it. These 
eleemosynary institutions do not fill the place which would other- 
wise be occupied by government, but that which would otherwise 
remain vacant. They are complete acquisitions to literature. They 
are donations to education; donations which any government must 
be disposed rather to encourage than to discountenance. It re- 
quires no very critical examination of the human mind to enable 
us to determine that one great inducement to these gifts is the 
conviction felt by the giver that the disposition he makes of them 
is immutable. It is probable that no man ever was, and that 
no man ever will be, the founder of a college, believing at the time 
that an act of incorporation constitutes no security for the insti- 
tution; believing that it is immediately to be deemed a public 
institution, whose funds are to be governed and applied, not by 
the will of the donor, but by the will of the legislature. All such 
gifts are made in the pleasing, perhaps delusive, hope that the 
charity will flow forever in the channel which the givers have 
marked out for it. If every man finds in his own bosom strong 
evidence of the universality of this sentiment, there can be but 
little reason to imagine that the framers of our constitution were 
strangers to it; and that, feeling the necessity and policy of giving 
permanence and security to contracts, of withdrawing them from 
the influence of legislative bodies, whose fluctuating policy and 
repeated interferences produced the most perplexing and inju- 
rious embarrassments, they still deemed it necessary to leave these 
contracts subject to those interferences. The motives for such 



DARTMOUTH COLLEGE v. WOODWARD. 427 

an exception must be very powerful to justify the construction 
which makes it. 

The motives suggested at the bar grow out of the original ap- 
pointment of the trustees, which is supposed to have been in a 
spirit hostile to the genius of our government, and the presump- 
tion that, if allowed to continue themselves, they now are, and 
must remain forever, what they originally were. Hence is inferred 
the necessity of applying to this corporation, and to other similar 
corporations, the correcting and improving hand of the legisla- 
ture. 

It has been urged rej)eatedly, and certainly with a degree of 
earnestness which attracted attention, that the trustees, deriving 
their power from a regal source, must necessarily partake of the 
spirit of their origin; and that their first principles, unimproved 
by that resplendent light which has been shed around them, must 
continue to govern the college, and to guide the students. Before 
we inquire into the influence which this argument ought to have 
on the constitutional question, it may not be amiss to examine 
the fact on which it rests. The first trustees were undoubtedly 
named in the charter by the crown, but at whose suggestion were 
they named? By whom were they selected? The charter informs 
us. Dr. Wheelock had represented, "that, for many weighty rea- 
sons, it would be expedient that the gentlemen whom he had al- 
ready nominated in his last will to be trustees in America, should 
be of the corporation now proposed." When, afterwards, the 
trustees are named in the charter, can it be doubted that the per- 
sons mentioned by Dr. Wheelock in his will were appointed? Some 
were probably added by the crown, with .the approbation of Dr. 
Wheelock. Among these is the doctor himself. If any others 
were appointed at the instance of the crown, they are the governor, 
three members of the council, and the speaker of the house of 
representatives of the colony of New Hampshire. The stations 
filled by these persons ought to rescue them from any other im- 
putation than too great a dependence on the crown. If in the 
Kevolution that followed, they acted under the influence of this 
sentiment, they must have ceased to be trustees; if they took 
part with their countrymen, the imputation which suspicion might 
excite would no longer attach to them. The original trustees, 
then, or most of them, were named by Dr. Wheelock, and those 
who were added to his nomination, most probably with his appro- 
bation, were among the most eminent and respectable individuals 
in New Hampshire. 

The only evidence which we possess of the character of Dr. 



428 CASES ON CONSTITUTIONAL LAW. 

"\nieelock is fuxnisliecl by tliis charter. Tlie judicious means eni- 
ployed for tlie accomplisliment of his object, and the success which 
attended his endeavors, would lead to the opinion that he united 
a sound understanding to that humanity and benevolence which 
suggested his undertaking. It surel}^ cannot be assumed that his 
trustees were selected without judgment. With as little probabil- 
ity can it be assumed that, while the light of science and of lib- 
eral principles pervades the whole community, these originally 
benighted trustees remain in utter darkness, incapable of partici- 
pating in the general improvement; that, while the human race 
is rapidly advancing, they are stationary. Eeasoning a priori, we 
should believe that learned and intelligent men, selected by its 
patrons for the government of a literary institution, would select 
learned and intelligent men for their successors, men as well fitted 
for the government of a college as those who might be chosen by 
other means. Should this reasoning ever prove erroneous in a 
particular case, public opinion, as has been stated at the bar, 
would correct the institution. The mere possibility of the contrary 
would not justify a construction of the constitution which should 
exclude these contracts from the protection of a provision whose 
terms comprehend them. 

The opinion of the court, after mature deliberation is, that this 
is a contract, the obligation of which cannot be impaired without 
violating the constitution of the United States. This opinion ap- 
pears to us to be equally supported by reason and by the former 
decisions of this court. 

2. "We next proceed to the inquiry whether its obligation has 
been impaired by those acts of the legislature of Xew Hampshire 
to which the special verdict refers. 

From the review of this charter which has been taken it appears 
that the whole power of governing the college, of appointing and re- 
moving tutors, of fixing their salaries, of directing the course o'f 
study to be pursued by the students, and of filling up vacancies cre- 
ated in their own body, was vested in the trustees. On the part 
of the crown it was expressly stipulated that this corporation, 
thus constituted, should continue forever; and that the number 
of trustees should forever consist of twelve, and no more. By 
this contract the crown was bound, and could have fnade no vio- 
lent alteration in its essential terms without impairing its obliga- 
tion. 

By the Eevolution the duties as well as the powers of govern- 
ment devolved on the people of Xew Hampshire. It is admitted 
that among the latter was comprehended the transcendent power 



DARTMOUTH COLLEGE v. WOODWARD. 429 

of parliament, as well as that of the executive department. It is 
too clear to require the support of argument that all contracts 
and rights respecting property remained unchanged by the Eevo- 
lution. The obligations, then, which were created by the char- 
ter to Dartmouth College were the same in the new that they had 
been in the old government. The power of the government was 
also the same. A repeal of this charter at any time prior to the 
adoption of the present constitution of the United States would 
have been an extraordinary and unprecedented act of power, but 
one which could have been contested only by the restrictions upon 
the legislature to be found in the constitution of the State. But 
the constitution of the United States has imposed this addi- 
tional limitation, that the legislature of a State shall pass no act 
"impairing the obligation of contracts." 

It has been already stated that the act "to amend the charter 
and enlarge and improve the eoriwration of Dartmouth College" 
increases the number of trustees to twenty-one, gives the appoint- 
ment of the additional members to the executive of the State, and 
creates a board of overseers, to consist of twenty-five persons, of 
whom twenty-one are also appointed by the executive of New 
Hampshire, who have power to inspect and control the most im- 
portant acts of the trustees. 

On the effect of this law two opinions cannot be entertained. 
Between acting directly and acting through the agency of trus- 
tees and overseers no essential difference is perceived. The whole 
power of governing the college is transformed from trustees ap- 
pointed according to the will of the founder, expressed in the 
charter, to the executive of New Hampshire. The management 
and apjilication of the funds of this eleemosynary institution, which 
are placed by the donors in the hands of trustees named in the 
charter, and empowered to perpetuate themselves, are placed by 
this act under the control of the government of the State. The 
will of the State is substituted for the will of the donors in every 
essential operation of the college. This is not an immaterial 
change. The founders of the college contracted, not merely for 
the perpetual application of the funds which they gave to the 
objects for which those funds were given; they contracted also to 
secure that application by the constitution of the corporation. 
They contracted for a system which should, as far as human fore- 
sight can provide, retain forever the government of the literary 
institution they had formed, in the hands of persons approved 
by themselves. This S5^stem is totally changed. The charter of 
1769 exists no longer. It is reorganized; and reorganized in such 



430 CASES ON CONSTITUTIONAL LAW. 

a manner as to convert a literary institution, molded according to 
the will of its founders and placed under the control of private 
literary men, into a machine entirely subservient to the will of 
government. This may be for the advantage of this college in 
particular, and may be for the advantage of literature in general; 
but it is not according to the will of the donors, and is subver- 
sive of that contract on the faith of which their property was 
given. 

In the view which has been taken of this interesting case, the 
court has confined itself to the rights possessed by the trustees, as 
the assignees and representatives of the donors and founders, for 
the benefit of religion and literature. Yet it is not clear that the 
trustees ought to be considered as destitute of such beneficial in- 
terest in themselves as the law may respect. In addition to their 
being the legal owners of the property, and to their having a free- 
hold right in the powers confided to them, the charter itself 
countenances the idea that trustees may also be tutors with sala- 
ries. The first president was one of the original trustees; and the 
charter provides, that in case of vacancy in that office, "the senior 
professor or tutor, being one of the trustees, shall exercise the 
office of president, until the trustees shall make choice of, and 
appoint a president." According to the tenor of the charter, then, 
the trustees might, without impropriety, appoint a president and 
other professors from their own body. This is a j)ower not entirely 
unconnected with an interest. Even if the proposition of the 
counsel for the defendant were sustained; if it were admitted, that 
those contracts only are protected by the constitution, a beneficial 
interest in. which is vested in the party who appears in court to 
assert that interest; yet it is by no means clear that the Trustees 
of Dartmouth College have no beneficial interest in themselves. 

But the court has deemed it unnecessary to investigate this 
particular point, being of opinion, on general principles, that in 
these private eleemosynary institutions, the body corporate, as pos- 
sessing the whole legal and equitable interest, and completely rep- 
resenting the donors, for the purpose of executing the trust, has 
rights which are protected by the constitution. 

It results from this opinion, that the acts of the legislature of 
Xew Hampshire, which are stated in the special verdict found in 
this cause, are repugnant to the constitution of the United States; 
and that the judgment on this special verdict ought to have been 
for the plaintiffs. The judgment of the state court must, there- 
fore, be reversed. 



OGDEN V. SAUNDERS. 431 

[Justices Washington and Story delivered concurring opin- 
ions. Justice Johnson concurred for the reasons stated by the 
Chief Justice; Justice Livingston concurred for the reasons 
stated by the Chief Justice and by Justices Washington and 
Story. Justice Duvall dissented.] 

Note. — "It may well be doubted whether any decision ever de- 
livered by any court has had such a pervading operation and in- 
fluence in controlling legislation as this. The legislation, however, 
so controlled, has been that of the States of the Union." Miller, 
Lectures on the Constitution of the United States, 391. 



OGDE^ V. SAUNDEES. 

12 Wheaton, 213. Decided 1827. 

Error to the district court of the United States for Louisiana. 

This was an action of assumpsit, brought in the court below, 
by the defendant in error, Saunders, a citizen of Kentucky, against 
the plaintiff in error, Ogden, a citizen of Louisiana. The plaintiff 
below declared upon certain bills of exchange, drawn on the 30th 
of September, 1806, by one Jordan, at Lexington, in the State of 
Kentucky, upon the defendant below, Ogden, in the city of New 
York (the defendant then being a citizen and resident of the State 
of New York), accepted by him at the city of New York, and pro- 
tested for non-payment. 

The defendant below pleaded several pleas, among which was 
a certificate of discharge under the act of the legislature of the 
State of New York, of April 3, 1801, for the rehef of insolvent 
debtors, commonly called the three-fourths act. 

The jury found the facts in the form of a special verdict, on 
which the court rendered a judgment for the plaintiff below, and 
the cause was brought by writ of error before this court. The 
question which arose under this plea as to the validity of the law 
of New York as being repugnant to the constitution of the United 
States, was argued at February term, 1824, . . . and the 
cause was continued for advisement until the present term. It 
was again argued at the present term (in connection with several 
other causes standing on the calendar, and involving the general 



432 CASES ON CONSTITUTIONAL LAW. 

question of the validity of the state bankrupt, or insolvent laws). 

The learned judges delivered their opinions as follows: — 

Washixgtox, J. The first and most important point to be de- 
cided in this cause turns essentially upon the question, whether 
the obligation of a contract is impaired by a State bankrupt or in- 
solvent law, which discharges the person and the future acquisitions 
of the debtor from his liability under a contract entered into in 
that State after the passage of the act. 

This question has never before been distinctly presented to the 
consideration of this court, and decided, although it has been sup- 
posed by the judges of a highly respectable state court- that it was 
decided in the case of M"Millan v. M'Xeal, 4 T7., 209. That was 
the case of a debt contracted by two citizens of South Carolina, in 
that State, the discharge of which had a view to no other State. 
The debtor afterwards removed to the territory of Louisiana, where 
he was regularly discharged, as an insolvent, from all his debts, 
under an act of the legislature of that State passed prior to the 
time when the debt in question was contracted. To an action 
brought by the creditor in the district court of Louisiana, the de- 
fendant plead in bar his discharge, under the law of that territory, 
and it was contended by the counsel for the debtor in this court, 
that the law under which the debtor was discharged, having passed 
before the contract was made, it could not be said to impair its 
obhgation. The cause was argued on one side only, and it would 
seem from the report of the case, that no written opinion was pre- 
pared by the court. The chief justice stated that the circumstance 
of the state law under which the debt was attempted to be dis- 
charged having been passed before the debt was contracted, made 
no difference in the application of the principle which had been 
asesrted by the court in the case of Sturges v. Crowninshield, 4 W., 
122. The correctness of this position is believed to be incontro- 
vertible. The principle alluded to was, that a state bankrupt law 
which impairs the obligation of a contract, is unconstitutional in 
its application to such contract. In that case, it is true, the con- 
tract preceded in order of time the act of assembly, under which 
the debtor was discharged, although it was not thought necessary 
to notice that circumstance in the opinion which was pronounced. 
The principle, however,- remained, in the opinion of the court de- 
livered in M'Millan v. M'Xeal, unaffected by the circumstance 
that the law of Louisiana preceded a contract made in another 
State; since that law, having no extra-territorial force, never did 



OGDEN V. SAUNDERS. 433 

at any time govern or affect the obligation of such contract. It 
eould not, therefore, be correctly said to be prior to the contract, 
in reference to its obligation; since if, upon legal principles, it 
could affect the contract, that could not happen until the debtor 
became a citizen of Louisiana, and that was subsequent to the 
contract. But I hold the principle to be well established, that a 
discharge under the bankrupt laws of one government does not 
affect contracts made or to be executed under another, whether 
the law be prior or subsequent in the date to that of the contract; 
and this I take to be the only point really decided in the case 
alluded to. Whether the chief Justice was correctly understood 
by the reporter, when he is supposed to have said, "that this case 
was not distinguishable in principle from the preceding case of 
Sturges V. Crowninshield," it is not material at this time to in- 
quire, because I understand the meaning of these expressions to 
go no further than to intimate that there was no distinction be- 
tween the cases as to the constitutional objection, since it professed 
to discharge a debt contracted in another State, which, at the time 
it was contracted, was not within its operation, nor subject to be 
discharged by it. The case now to be decided, is that of a debt 
contracted in the State of New York, by a citizen of that State, 
from which he was discharged, so far as he constitutionally could 
be, under a bankrupt law of that State, in force at the time when 
the debt was contracted. It is a case, therefore, that bears no re- 
semblance to the one Just noticed. 

I^ome now to the consideration of the question, which, for the 
first time, has been directly brought before this court for Judg- 
ment. ... 

It has constantly appeared to me, throughout the different in- 
vestigations of this question to which it has been my duty to 
attend, that the error of those who controvert the constitutionality 
of the bankrupt law under consideration, in its application to this 
case, if they be in error at all, has arisen from not distinguishing 
accurately between a law which impairs a contract, and one which 
impairs its obligation. A contract is defined by all to be an agree- 
ment to do or not to do some particular act; and in the construc- 
tion of this agreement, depending essentially upon the will of the 
parties between whom it is formed, we seek for their intention with 
a view to fulfill it. Any law, then, which enlarges, abridges or in 
any manner changes this intention, when it is discovered, neces- 
sarily impairs the contract itself, which is but the evidence of that 
intention. . . , 

What is it, then, which constitutes the obligation of a con- 
28 



434 CASES ON CONSTITUTIONAL LAW. 

tract? The answer is given by the chief justice, in the ease of 
Stnrges v. Crowninshield, to which I readily assent now, as I did 
then; it is the law which binds the parties to perform their agree- 
ment. The law, then, which has this binding obligation, must 
govern and control the contract in every shape in which it is in- 
tended to bear upon it, whether it affect its validity, construction, 
or discharge. 

But the question, which law is referred to in the above definition, 
still remains to be solved. It cannot, for a moment, be conceded 
that the mere moral law is intended, since the obligation which 
that imposes is altogether of the imperfect kind which the parties 
to it are free to obey or not, as they please. It cannot be supposed 
that it was with this law the grave authors of this instrument were 
dealing. 

The universal law of all civilized nations, which declares that 
men shall perform that to which they have agreed, has been sup- 
posed by the counsel who have argued this cause for the defendant 
in error, to be the law which is alluded to; and I have no objection 
to acknowledging its obligation, whilst I must deny that it is that 
which exclusively governs the contract. It is upon this law that 
the obligation which nations acknowledge to perform their com- 
pacts with each other is founded, and I, therefore, feel no objection 
to answer the question asked by the same counsel — what law it 
is which constitutes the obligation of the compact between Vir- 
ginia and Kentucky — by admitting, that it is this common law of 
nations which requires them to perform it. I admit further that 
it is this law which creates the obligation of a contract made upon 
a desert spot, where no municipal law exists, and (which was 
another case put by the same counsel) which contract, by the tacit 
assent of all nations, their tribunals are authorized to enforce. 

But can it be seriously insisted that this, any more than the 
moral law upon which it is founded, was exclusively in the con- 
templation of those who framed this constitution? What is the 
language of this universal law ? It is simply that all men are bound 
to perform their contracts. The injunction is as absolute as the 
contracts to which it applies. It admits of no qualification and 
no restraint, either as to its validity, construction, or discharge, 
further than may be necessary to develop the intention of the 
parties to the contract. And if it be true that this is exclusively 
the law, to which the constitution refers us, it is very apparent that 
the sphere of state legislation upon subjects connected with the 
contracts of individuals, would be abridged beyond what it can 
for a moment be believed the sovereign States of this Union would 



OGDEN V. SAUNDERS. 435 

have consented to; for it will be found, upon examination, that 
there are few laws which concern the general police of a State, or 
the government of its citizens, in their intercourse with each other 
or with strangers, which may not in some way or other affect the 
contracts which they have entered into, or may thereafter form. 
For what are laws of evidence, or which concern remedies — frauds 
and perjuries — laws of registration, and those which affect land- 
lord and tenant, sales at auction, acts of limitation, and those 
which limit the fees of professional men, and the charges of tavern- 
keepers, and a multitude of others which crowd the codes of every 
State, but laws which may affect the validity, construction, or dura- 
tion, or discharge of contracts? Whilst I admit, then, that this 
common law of nations, which has been mentioned, may form in 
part the obligation of a contract, I must unhesitatingly insist that 
this law is to be taken in strict subordination to the municipal 
laws of the land where the contract is made, or is to be executed. 
The former can be satisfied by nothing short of performance; 
the latter may affect and control the validity, construction, evi- 
dence, remedy, performance, and discharge of the contract. The 
former is the common law of all civilized nations, and of each of 
them; the latter is the peculiar law of each, and is paramount to 
the former whenever they come in collision with each other. 

It is, then, the municipal law of the State, whether that be 
written or unwritten, which is emphatically the law of the con- 
tract made within the State, and must govern it throughout, wher- 
ever its performance is sought to be enforced. 

It forms, in my humble opinion, a part of the contract, and 
travels with it wherever the parties to it may be found. It is so 
regarded by all the civilized nations of the world, and is enforced 
by the tribunals of those nations according to its own forms, unless 
the parties to it have otherwise agreed, as where the contract is to 
be executed in, or refers to the laws of, some other country than 
that in which it is formed, or where it is of an immoral character, 
or contravenes the policy of the nation to whose tribunals the ap- 
peal is made; in which latter cases the remedy which the comity 
of nations affords for enforcing the obligation of contracts wher- 
ever formed, is denied. Free from these objections, this law, which 
accompanies the contract as forming a part of it, is regarded and 
enforced everywhere, whether it affect the validity, construction, 
or discharge of the contract. It is upon this principle of universal 
law, that the discharge of the contract, or of one of the parties 
to it, by the bankrupt laws of the country where it was made, 
operates as a discharge everywhere. 



436 CASES ON CONSTITUTIONAL LAW. 

If, tlien, it be true that tlie lavr of tlie country wliere tlie contract 
is made or to be executed, forms a part of that contract and of 
its obligation, it would seem to be somewhat of a solecism to say 
that it does, at the same time, impair that obligation. 

But it is contended that if the municipal law of the State where 
the contract is so made form a part of it, so does that clause of 
the constitution which prohibits the States from passing laws to 
impair the obligation of contracts; and, consequently, that the 
law is rendered inoperative by force of its controlling associate. 
All this I admit, provided it be first proved that the law so incor- 
porated with and forming a part of the contract does, in effect, 
impair its obligation; and before this can be proved, it must be 
affirmed and satisfactorily made out, that if, by the terms of the 
contract, it is agreed that, on the happening of a certain event, as, 
upon the future insolvency of one of the parties, and his surrender 
of all his property for the benefit of his creditors, the contract shall 
be considered as performed and at an end, this stipulation would 
impair the obligation of the contract. If this proposition can be 
successfully affirmed, I can only say, that the soundness of it is 
beyond the reach of my mind to imderstand. 

Again, it is insisted that if the law of the contract forms a part 
of it, the law itself cannot be repealed without impairing the obli- 
gation of the contract. This proposition I must be permitted to 
deny. It may be repealed at any time, at the will of the legis- 
lature, and then it ceases to form any part of those contracts which 
may afterwards be entered into. The repeal is no more void than 
a new law would be which operates upon contracts to affect their 
validity, construotion, or duration. Both are valid (if the view 
which I take of this case be correct), as they may affect contracts 
afterwards formed; but neither are so, if they bear upon existing 
contracts; and, in the former case, in which the repeal contains 
no enactment, the constitution would forbid the application of the 
repealing law to past contracts, and to those only. 

To illustrate this argument, let us take four laws, which, either 
by new enactments, or by the repeal of former laws, may affect 
contracts as to their validity, construction, evidence, or remedy. 

Laws against usury are of the first description. 

A law which converts a penalty, stipulated for by the parties, as 
the only atonement for a breach of the contract, into a mere agree- 
ment for a just compensation, to be measured by the legal rate of 
interest, is of the second. 

The statute of frauds, and the statute of limitations, may be 
cited as examples of the last two. 



OGDEN V. SAUNDERS. 437 

The validity of these laws can never be questioned by those who 
accompany me in the view which I take of the question under 
consideration, unless they operate, by their express provisions, 
upon contracts previously entered into; and even then they are 
void only so far as they do so operate; because, in that case, and in 
that case only, do they impair the obligation of those contracts. 
But if they equally impair the obligation of contracts subsequently 
made, which they must do, if this be the operation of a bankrupt 
law upon such contracts, it would seem to follow that all such 
laws, whether in the form of new enactments, or of repealing laws, 
producing the same legal consequences, are made void by the con- 
stitution; and yet the counsel for the defendants in eiTor have not 
ventured to maintain so alarming a proposition. 

If it be conceded that those laws are not repugnant to the con- 
stitution, so far as they apply to subsequent contracts, I am yet • 
to be instructed how to distinguish between those laws, and the 
one now under consideration. How has this been attempted by the 
learned counsel who have argued this cause upon the ground of 
such a distinction? 

They have insisted that the effect of the law first supposed, is 
to annihilate the contract in its birth, or rather to prevent it from 
having a legal- existence, and consequently, that there is no obliga- 
tion to be impaired. But this is clearly not so, since it may legiti- 
mately avoid all contracts afterwards entered into, which reserve to 
the lender a higher rate of interest than this law permits. 

The validity of the second law is admitted, and yet this can only 
be in its application to subsequent contracts; for it has not, and I 
think it cannot, for a moment, be maintained, that a law which, 
in express terms, varies the construction of an existing contract, 
or which, repealing a former law, is made to produce the same 
effect, does not impair the obligation of that contract. 

The statute of frauds, and the statute of limitations, which 
have been put as examples of the third and fourth classes of laws, 
are also admitted to be valid, because they merely concern the 
modes of proceeding in the trial of causes. The former, supplying 
a rule of evidence, and the latter, forming a part of the remedy 
given by the legislature to enforce the obligation, and likewise pro- 
viding a rule of evidence. 

All this I admit. But how does it happen that these laws, like 
those which affect the validity and construction of contracts, are 
valid as to subsequent, and yet void as to prior and subsisting con- 
tracts? For we are informed by the learned judge who delivered 
the opinion of this court, in the case of Sturges v. Crowninshield, 



438 CASES ON CONSTITUTIONAL LAW. 

4 W., 122, that, '^'if, in a State where six years may be pleaded in 
bar to an action of assumpsit, a law should pass declaring that con- 
tracts already in existence, not barred by the statute, should be 
construed within it, there could be little doubt of its unconstitu- 
tionality." 

It is thus most apparent that, whichever way we turn, whether 
to laws affecting the validity, construction, or discharges of con- 
tracts, or the evidence or remedy to be employed in enforcing them, 
we are met by this overruling and admitted distinction, between 
those which operate retrospectively, and those which operate pros- 
pectively. In all of them the law is pronounced to be void in the 
first class of cases, and not so in the second. 

Let us stop, then, to make a more critical examination of the 
act of limitations, which, although it concerns the remedy, or, if 
it must be conceded, the evidence, is yet void or otherwise, as it is 
made to apply retroactively, or prospectivel}^ and see if it can, 
upon any intelligible principle, be distinguished from a bankrupt 
law, when applied in the same manner. AAliat is the effect of the 
former? The answer is, to discharge the debtor and all his future 
acquisitions from this contract; because he is permitted to plead 
it in bar of any remedy which can be instituted against him, and 
consequently in bar or destruction of the obligation which his con- 
tract imposed upon him. Wliat is the effect of a discharge under 
a bankrupt law? I can answer this question in no other terms 
than those which are given to the former question. If there be a 
difference, it is one which, in the eye of justice, at least, is more 
favorable to the validity of the latter than of the former; for in 
the one, the debtor surrenders everything which he possesses 
towards the discharge of his obligation, and in the other, he sur- 
renders nothing, and sullenly shelters himself behind a legal objec- 
tion with which the law has provided him, for the purpose of pro- 
tecting his person, and his present as well as his future acquisitions, 
against the performance of his contract. 

It is said that the former does not discharge him absolutely 
from his contract, because it leaves a shadow sufficiently substan- 
tial to raise a consideration for a new promise to pay. And is not 
this equally the case with a certificated bankrupt, who afterwards 
promises to pay a debt from which his certificate had discharged 
him? In the former case, it is said the defendant must plead the 
statute in order to bar the remedy and to exempt him from his 
obligation. And so, I answer, he must plead his discharge under 
the bankrupt law, and his conformity to it, in order to bar the 
remedy of his creditor, and to secure to himself a like exemption. 



OGDEN V. SAUNDERS. 439 

I have, in short, sought in vain for some other grounds on which 
to distinguish the two laws from each otlier than those which were 
suggested at the bar, I can imagine no otlier, and I confidently 
believe that none exist which will bear the test of a critical ex- 
amination. 

To the decision of this court, made in the case of Sturges v. 
Crowninshield, and to the reasoning of the learned judge who 
delivered that opinion, I entirely submit; although I did not then, 
nor can I now bring my mind to concur in that part of it which 
admits the constitutional power of the state legislatures to pass 
bankrupt laws, by which I understand those laws which discharge 
the person and the future acquisitions of the bankrupt from his 
debts. I have always thought that the power to pass such a law 
was exclusively vested by the constitution in the legislature of the 
United States. But it becomes me to believe that this opinion was 
and is incorrect, since it stands condemned by the decision of a 
majority of this court, solemnly pronounced. 

After making this acknowledgment, I refer again to the above 
decision with some degree of confidence in support of the opinion, 
to which I am now inclined to come, that a bankrupt law which 
operates prospectively, or in so far as it does so operate, does not 
violate the constitution of the United States. It is there stated 
"that, until the power to pass uniform laws on the subject of bank- 
ruptcies be exercised by congress, the States are not forbidden to 
pass a bankrupt law, provided it contain no principle which vio- 
lates the 10th section of the 1st article of the constitution of the 
United States." The question in that case was, whether the law 
of New York, passed on the 3d of April, 1811, which liberates 
not only the person of the debtor, but discharges him from all 
liability for any debt contracted previous as well as subsequent to 
his discharge, on his surrendering his property for the use of his 
creditors, was a valid law under the constitution, in its application 
to a debt contracted prior to its passage. The court decided that 
it was not, upon the single ground that it impaired the obligation 
of that contract. And if it be true that the States cannot pass a 
similar law to operate upon contraots subsequently entered into, 
it follows inevitably, either that they cannot pass such laws at all, 
contrary to the express declaration of the court, as before quoted, 
or that such laws do not impair the obligation of contracts subse- 
quently entered into; in fine, it is a self-evident proposition that 
every contract that can be formed, must either precede or follow 
any law by which it may be affected. 

I have, throughout the preceding part of this opinion, considered 



440 CASES ON CONSTITUTIONAL LAW. 

the municipal law of tlie country where the contract is made as 
incorporated with the contract, whether it affects its validity, con- 
struction, or discharge. But I think it quite immaterial to stickle 
for this position, if it be conceded to me, what can scarcely be 
denied, that this municipal law constitutes the law of the contract 
so formed, and must govern it throughout. I hold the legal con- 
sequences to be the same in whichever view the law, as it affects 
the contract, is considered. 

I come now to a more particular examination and construction 
of the section under which this question arises; and I am free to 
acknowledge that the collocation of the subjects for which it pro- 
vides, has made an irresistible impression upon my mind, much 
stronger, I am persuaded, than I can find language to communicate 
to the minds of others. 

It declares that "no State shall coin money, emit bills of credit, 
make anjiihing but gold and silver coin a tender in payment of 
debts." These prohibitions, associated with the powers granted 
to congress "to coin money, and to regulate the value thereof, and 
of foreign coins," most obviously constitute members of the same 
family, being upon the same subject and governed by the same 
policy. 

This policy was to provide a fixed and uniform standard of value 
throughout the United States, by which the commercial and other 
dealings between the citizens thereof, or between them and for- 
eigners, as well as the moneyed transactions of the government, 
should be regulated. For it might well be asked, why vest in con- 
gress the power to establish a uniform standard of value by the 
means pointed out, if the States might use the same means, and 
thus defeat the uniformity of the standard, and, consequently, the 
standard itself? And why establish a standard at all, for the gov- 
ernment of the various contracts which might be entered into, if 
those contracts might afterwards be discharged by a different 
standard, or by that which is not money, under the authority of 
State tender laws? It is obvious, therefore, that these prohibitions, 
in the 10th section, are entirely homogeneous, and are essential to 
the establishment of a uniform standard of value, in the formation 
and discharge of contracts. It is for this reason, independent of 
the general phraseology which is employed, that the prohibition in 
regard to State tender laws will admit of no construction which 
would confine it to State laws which have a redrospective operation. 

The next class of prohibitions contained in this section consists 
of bills of attainder, ex post facto laws, and laws impairing the 
obligation of contracts. 



OGDEN V. SAUNDERS. 441 

Here, too, we observe, as I think, members of the same family 
brought together in the most intimate connection with each other. 
The States are forbidden to pass any bill of attainder or ex post 
facto law, by which a man shall be punished criminally or penally, 
by loss of life, of his liberty, property, or reputation, for an act 
which, at the time of its commission, violated no existing law of the 
land. Why did the authors of the constitution turn their attention 
to this subject, which, at the first blush, would appear to be pe- 
culiarly fit to be left to the discretion of those who have the police 
and good government of the State under their management and 
control? The only answer to be given is, because laws of this 
character are oppressive, unjust, and tyrannical; and, as such, are 
condemned by the universal sentence of civilized man. The injus- 
tice and tyranny which characterizes ex post facto laws, consists 
altogether in their retrospective operation, which applies with 
equal force, although not exclusively, to bills of attainder. 

But if it was deemed wise and proper to prohibit State legislation 
as to retrospective laws, which concern, almost exclusively, the 
citizens and inhabitants of the particular State in which this legis- 
lation takes place, how much more did it concern the private and 
political interests of the citizens of all the States, in their com- 
mercial and ordinary intercourse with each other, .that the same 
prohibition should be extended civilly to the contracts which they 
might enter into? 

If it were proper to prohibit a state legislature to pass a retro- 
spective law, which should take from the pocket of one of its own 
citizens a single dollar as a punishment for an act which was inno- 
cent at the time it was committed; how much more proper was it 
to prohibit laws of the same character precisely, which might de- 
prive the citizens of other States, and foreigners as well as citizens 
of the same State, of thousands, to which, by their contracts, they 
were justly entitled, and which they might possibly have realized 
but for such State interference? How natural, then, was it, under 
the influence of these considerations, to interdict similar legislation 
in regard to contracts, by providing that no State should pass laws 
impairing the obligation of past contracts? It is true that the first 
two of these prohibitions apply to laws of a criminal, and the last 
to laws of a civil character; but if I am correct in my view of the 
spirit and motives of these prohibitions, they agree in the principle 
which suggested them. They are founded upon the same reason, 
and the application of it is at least as strong to the last as it is to 
the first two prohibitions. 

But these reasons are altogether inapplicable to laws of a pros- 



4:4:2 CASES ON CONSTITUTIONAL LAW. 

pective character. There is nothing unjust or tyrannical in pun- 
isliing offenses prohibited by law, and committed in violation of 
that law. Nor can it be unjust or oppressive, to declare by law that 
contracts subsequently entered into, may be discharged in a way 
different from that which the parties have provided, but which 
they know, or may know, are liable, under certain circumstances, 
to be discharged in a manner contrary to the provisions of their 
contract. 

Thinking, as I have always done, that the power to pass bank- 
rupt laws was intended by the authors of the constitution to be 
exclusive in congress, or, at least, that they expected the power 
vested in that body would be exercised, so as effectually to prevent 
its exercise by the States, it is the more probable that, in refer- 
ence to all other interferences of the state legislatures upon the 
subject of contracts, retrospective laws were alone in the contem- 
plation of the convention. . . . 

But why, it has been asked, forbid the States to pass laws mak- 
ing anything but gold and silver coin a tender in payment of debts 
contracted subsequent as well as prior to the law which author- 
izes it; and yet confine the jDrohibition to pass laws impairing the 
obligation of contracts to past contracts, or, in other words, to 
future bankrupt laws, when the consequence resulting from each 
is the same, the latter being considered by the counsel as being, in 
truth, nothing less than tender laws in disguise. 

An answer to this question has, in part, been anticipated by 
some of the preceding observations. The power to pass bankrupt 
laws having been vested in congress, either as an exclusive power, 
or under the belief that it would certainly be exercised; it is highly 
probable that state legislation upon that subject was not within the 
contemplation of the convention; or, if it was, it is quite unlikely 
that the exercise of the power, by the state legislatures, would 
have been prohibited by the use of terms which, I have endeavored 
to show, are inapplicable to laws intended to operate prospectively. 
For had the prohibition been to pass laws impairing contracts, in- 
stead of the obligation of contracts, I admit that it would have 
borne the construction which is contended for, since it is clear 
that the agreement of the parties in the first case would be im- 
paired as much by a prior as it Avould be by a subsequent bankrupt 
law. It has, besides, been attempted to be shown that the limited 
restriction upon state legislation, imposed by the former prohi- 
bition, might be submitted to by the States, whilst the extensive 
operation of the latter Avould have hazarded, to say the least of it, 
the adoption of the constitution by the state conventions. 



OGDEN V. SAUNDERS. 443 

But an answer, still more satisfactory to my mind, is this: tender 
laws, of the description stated in this section, are always unjust; 
and, where there is an existing bankrupt law at the time the con- 
tract is made, they can seldom be useful to the honest debtor. They 
violate the agreement of the parties to it, without the semblance 
of an apology for the measure, since they operate to discharge the 
debtor from his undertaking, upon terms variant from those by 
which he bound himself, to the injury of the creditor, and unsup- 
ported, in many cases, by the plea of necessity. They extend relief 
to the opulent debtor, who does not stand in need of it; as well as 
to the one who is, by misfortunes, often unavoidable, reduced to 
poverty, and disabled from complying with his engagements. In 
relation to subsequent contracts, they are unjust when extended 
to the former class of debtors, and useless to the second, since 
they may be relieved by conforming to the requisitions of the state 
bankrupt law, where there is one. Being discharged by this law 
from all his antecedent debts, and having his future acquisitions 
secured to him, an opportunity is afforded him to become once 
more a useful member of society. 

If this view of the subject be correct, it will be difficult to prove 
that a prospective bankrupt law resembles, in any of its features, 
a law which should make anything but gold and silver coin a tender 
in payment of debts. 

I shall now conclude this opinion by rej^eating the acknowledg- 
ment which candor compelled me to make in its commencement, 
that the question which I have been examining is involved in dif- 
ficulty and doubt. But if I could rest my opinion in favor of the 
constitutionality of the law on which the question arises, on no 
other ground than this doubt so felt and acknowledged, that alone 
would, in my estimation, be a satisfactory vindication of it. It is 
but a decent respect due to the wisdom, the integrity, and the 
patriotism of the legislative body by which any law is passed^ to 
presume in favor of its validity, until its violation of the constitu- 
tion is proved beyond all reasonable doubt. This has always been 
the language of this court, when that subject has called for its 
decision; and I know that it expresses the honest sentiments of 
each and every member of this bench. I am perfectly satisfied 
that it is entertained by those of them from whom it is the mis- 
fortune of the majority of the court to differ on the present occa- 
sion, and that they feel no reasonalde doubt of the correctness of 
the conclusion to which their best judgment has conducted them. 



444 CASES ON CONSTITUTIONAL LAW. 

My opinion is^, that the Judgment of the court below ought to 
be reversed, and judgment given for the plaintiff in error. . . . 

[Justices Johxsox, Thompson, and Teimble delivered con- 
curring opinions. Chief Justice Maeshall delivered a dissent- 
ing opinion, in which Justices Duvall and Stoet concurred.] 

Judgment having been entered in favor of the validity of a cer- 
tificate of discharge under the state laws in those cases, argued in 
connection with Ogden v. Saunders, where the contract was made 
between citizens of the State under whose law the discharge was 
obtained, and in whose courts the certificate was pleaded, the cause 
was further argued by the same counsel, upon the points reserved, 
as to the effect of such a discharge in respect to a contract made 
with a citizen of another State, and where the certificate was 
pleaded in the courts of another State, or of the United States. 

JoHXSOX, J. I am instructed by the majority of the court finally 
to dispose of this cause. The present majority is not the same 
which determined the general question on the constitutionality 
of state insolvent laws, with reference to the violation of the obli- 
gation of contracts. I now stand united with the minority on the 
former question, and, therefore, feel it due to myself and the com- 
munity to maintain my consistency. 

The question now to be considered is, whether a discharge of a 
debtor under a state insolvent law, would be valid against a cred- 
itor or citizen of another State, who has never voluntarily subjected 
himself to the state laws, otherwise than by the origin of his con- 
tract. 

As between its own citizens, whatever be the origin of the con- 
tract, there is now no question to be made on the effect of such a 
discharge; nor is- it to be C[uestioned, that a discharge not valid 
under the constitution in the courts of the United States, is equally 
invalid in the state courts. The question to be considered goes to 
the invalidity of the discharge altogether, and, therefore, steers 
clear of that provision in the constitution which purports to give 
validity in every State to the records, judicial proceedings, and so 
forth, of each State. 

The Cjuestion now to be considered, was anticipated in the case 
of Sturges v. Crowninshield, 4 W., 122, when the court, in the 
close of the opinion delivered, declared that it means to confine 



OGDEN V. SAUNDERS. 445 

its views to the case then under consideration, and not to commit 
itself as to those in which the interests and rights of a citizen of 
another State are implicated. 

The question is one partly international, partly constitutional. 
My opinion on the subject is briefly this: that the provision in the 
constitution which gives the power to the general government to 
establish tribunals of its own in every State, in order that the citi- 
zens of other States or sovereignties might therein prosecute their 
rights under the jurisdiction of the United States, had for its object 
an harmonious distribution of justice throughout the Union; to 
confine the States, in the exercise of their judicial sovereignty, to 
cases between their own citizens; to prevent, in fact, the exercise 
of that very power over the rights of citizens of other States, which 
the origin of the contract might be supposed to give to each State; 
and thus, to obviate that conflidus legum, which has employed the 
pens of Huberus and various others, and which any one who studies 
the subject will plainly perceive it is infinitely more easy to prevent 
than to adjust. 

These conflicts of power and right necessarily arise only after 
contracts are entered into. Contracts, then, become the appropri- 
ate subjects of judicial cognizance; and if the just claims which 
they give rise to, are violated by arbitrary laws, or if the course of 
distributive justice be turned aside, or obstructed by legislative 
interference, it becomes a subject of jealousy, irritation, and na- 
tional complaint or retaliation. 

It is not unimportant to observe, that the constitution was 
adopted at the very period when the courts of Great Britain were 
engaged in adjusting the conflicts of right which arose upon their 
own bankrupt law, among the subjects of that crown in the several 
dominions of Scotland, Ireland, and the West Indies. The first 
case we have on the effect of foreign discharges, that of Ballantine 
V. Golding, 1 Cooke's Bank. Law, 487, occurred in 1783, and the 
law could hardly be held settled before the case of Hunter v. Potts, 
4 Term Rep., 182, which was decided in 1791. 

Any one who will take the trouble to investigate the subject, 
will, I think, be satisfied, that although the British courts profess 
to decide upon a principle of universal law, when adjudicating 
upon the effect of a foreign discharge, neither the passage in Vattel, 
to which they constantly refer, nor the practice and doctrines of 
other nations, will sustain them in the principle to the extent in 
which they assert it. It was all-important to a great commercial 
nation, the creditors of all the rest of the world, to maintain the 
doctrine as one of universal obligation, that the assignment of tho 



446 CASES ON CONSTITUTIONAL LAW. 

bankrupt's effects, under a laT\^ of the country of the contract, 
should carry the interest in his debts, wherever his debtor may 
reside; and that no foreign discharge of his debtor should operate 
against debts contracted with the bankrupt in his own country. 
But I think it is perfectly clear that in the United States, a different 
doctrine has been established; and, since the power to discharge 
the bankrupt is asserted on the same principle with the power to 
assign his debts, that the departure from it in the one instance 
carries with it a negation of the principle altogether. 

It is yain to deny that it is now the established doctrine in 
England, that the discharge of a bankrupt shall be effectual against 
contracts of the State that give the discharge, whatsoever be the 
allegiance or country of the creditor. But I think it equally clear, 
that this is a rule peculiar to her jurisprudence, and that reciprocity 
is the general rule of other countries; that the effect given to such 
discharge is so much a matter of comity, that the States of the 
European continent, in all cases, reserve the right of deciding 
whether reciprocity will not operate injuriously upon their own 
citizens. 

Huberus, in his third axiom on this subject, puts the effect of 
such laws upon the ground of courtesy, and recognizes the reserva- 
tion that I have mentioned; other writers do the same. 

I will now examine the American decision on this subject; and, 
first, in direct hostility with the received doctrines of the British 
courts, it has been solemnly adjudged in this court, and, I believe, 
in every state court of the Enion, that, notwithstanding the laws 
of bankruptcy in England, a creditor of the bankrupt may levy 
an attachment on a debt due the bankrupt in this countrj'-, and 
appropriate the proceeds to his own debt. . . . [Here follows 
a consideration of the cases of Harrison v. Sterry, 5 Cranch, 289; 
Baker v. Wheaton, 5 Mass., 509; Watson v. Bourne, 10 Mass., 337; 
Assignees of Topham v. Chapman, 1 Const. Eep. (S. C), 283, 
and Phillips v. Hunter, 2 H. Black., 402.1 

I think it, then, fully established, that in the United States a 
creditor of the foreign bankrupt may attach the debt due the for- 
eign bankrupt, and apply the money to the satisfaction of his pe- 
culiar debt, to the prejudice of the rights of the assignees or other 
creditors. 

I do not here speak of assignees, or rights created, under the 
bankrupt's own deed; those stand on a different ground, and do 
not affect this question. I confine myself to assignments, or trans- 
fers, resting on the operation of the laws of the country, independ- 



OGDEN V. SAUNDERS. 447 

ent of the bankrupt's deedj to tlie rights and liabilities of debtor, 
creditor, bankrupt, and assignees, as created by law. 

What is the actual bearing of this right to attach, so generally 
recognized by our decisions? 

It imports a general abandonment of the British principles; for, 
according to their laws, the assignee alone has the power to release 
the debtor. But the right to attach necessarily implies the right 
to release the debtor, and that right is here asserted under the laws 
of a State which is not the State of the contract. 

So, also, the creditor of the bankrupt is, by the laws of his 
country, entitled to no more than a ratable participation in the 
bankrupt's effects. But the right to attach imports a right to ex- 
clusive satisfaction, if the effects so attached should prove adequate 
to make satisfaction. 

The right to attach also imports the right to sue the bankrupt; 
and who would impute to the bankrupt law of another country, 
the power to restrain the citizens of these States in the exercise of 
their right to go into the tribunals of their own country for the 
recovery of debts, wherever they may have originated? Yet, uni- 
versally, after the law takes the bankrupt into its own hands, his 
creditors are prohibited from suing. 

Thus much for the law of this case in an international view. I 
will consider it with reference to the provisions of the constitution. 

I have said above, that I had no doubt the erection of a distinct 
tribunal for the resort of citizens of other States, was introduced 
ex industria, into the constitution, to prevent, among other evils, 
the assertion of a power over the rights of the citizens of other 
States, upon the metaphysical ideas of the British courts on the 
subject of jurisdiction over contracts. And there was good reason 
for it; for, upon that principle it is, that a power is asserted over 
the rights of creditors which involves a mere mockery of justice. 

Thus, in the case of Burrows v. Jamineau (reported in 2 Strange, 
and better reported in Moseley, 1, and s®me other books), the 
creditor, residing in England, was cited, probably, by a placard on 
a door-post in Leghorn, to appear there to answer to his debtor; 
and his debt passed upon by the court, perhaps, without his having 
ever heard of the institution of legal process to destroy it. 

The Scotch, if I remember correctly, attach the summons on the 
flagstaff, or in the market-place, at the shore of Leith; and the 
civil law process by proclamation, or viis et moclis, is not much 
better, as the means of subjecting the rights of foreign creditors to 
their tribunals. 

All this mockery of justice, and the jealousies, recriminations, 



448 CASES ON CONSTITUTIONAL LAW. 

and perhaps retaliations wliicli might grow out of it are avoided, 
if the power of the States over contracts, after they become the 
subject exclusively of judicial cognizance, is limited to the con- 
troversies of their own citizens. 

And it does appear to me almost incontrovertible, that the 
States cannot proceed one step further without exercising a power 
incompatible with the acknowledged powers of other States, or of 
the United States, and with the rights of the citizens of other 
States. 

Every bankrupt or insolvent system in the world must partake 
of the character of a judicial investigation. Parties whose rights 
are to be affected, are entitled to a hearing. Hence every system, 
in common with the particular system now before us, professes to 
summon the creditors before some tribunal, to show cause against 
granting a discharge to the bankrupt. 

But on what principle can a citizen of another State be forced 
into the courts of a State for this investigation? The judgment to 
be passed is to prostrate his rights; and on the subject of these 
rights the constitution exempts him from the jurisdiction of the 
state tribunals, without regard to the place where the contract may 
originate. In the only tribunal to which he owes allegiance, the 
State insolvent or bankrupt laws cannot be carried into effect; 
they have a law of their own on the subject;^ and a certificate of 
discharge under any other law would not be acknowledged as valid 
even in the courts of the State in which the court of the United 
States that grants it is held. "WT.iere is the reciprocity? Where 
the reason uj^on which the state courts can thus exercise a power 
over the suitors of that court, when that court possesses no such 
power over the suitors of the state courts? 

In fact, the constitution takes away the only ground upon which 
this eminent dominion over particular contracts can be claimed, 
which is that of sovereignty. For the constitutional suitors in the 
courts of the United States are not only exempted from the neces- 
sity of resorting to the state tribunals, but actually cannot be forced 
into them. If, then, the law of the English courts had ever been 
practically adopted in this country in the state tribunals, the con- 
stitution has produced such a radical modification of state power 
over even their own contracts, in the hands of individuals not 
subject to their jurisdiction, as to furnish ground for excepting the 
rights of such individuals from the power which the States un- 
questionably possess over their own contracts, and their own 
citizens. 

1 2 Stats, at Large, 4. 



OGDEN V. SAUNDERS. 449 

Follow out the contrary doctrine in its consequences, and see 
the absurdity it will produce. 

The constitution has constituted courts professedly independent 
of state power in their judicial course; and yet the judgments of 
those courts are to be vacated, and their prisoners set at large, 
under the power of the state courts, or of the state laws, without 
the possibility of protecting themselves from its exercise. 

I cannot acquiesce in an incompatibility so obvious. 

No one has ever imagined that a prisoner in confinement, under 
process from the courts of the United States, could avail himself 
of the insolvent laws of the State in which the court sits. And 
the reason is, that those laws are municipal and peculiar, and ap- 
pertaining exclusively to the exercise of state power in that sphere 
in which it is sovereign, that is, between its own citizens, between 
suitors subjected to state power exclusively, in their controversies 
between themselves. 

In the courts of the United States, no higher power is asserted 
than that of discharging the individual in confinement under its 
own process. This affects not to interfere with the rights of cred- 
itors in the state courts, against the same individual. Perfect reci- 
procity would seem to indicate that no greater power should be 
exercised under state authority over the rights of suitors who 
belong to the United States jurisdiction. Even although the prin- 
ciple asserted in the British courts, of supreme and exclusive power 
over their contracts, had obtained in the courts of the United 
States, I must think that power has undergone a radical modifi- 
cation by the judicial powers granted to the United States. 

I, therefore, consider the discharge, under a state law, as incom- 
petent to discharge a debt due a citizen of another State; and it 
follows that the plea of a discharge here set up, is insufficient to 
bar the rights of the plaintiff. 

It becomes necessary, therefore, to consider the other errors 
assigned in behalf of the defendant; and, first, as to the plea of 
the act of limitations. 

The statute pleaded here is not the act of Louisiana, but that 
of New York; and the question is not raised by the facts or aver- 
ments, whether he could avail himself of that law if the full time 
had run out before his departure from New York, as was supposed 
in argument. The plea is obviously founded on the idea that the 
statute of the State of the contract was generally pleadable in any 
other State, a doctrine that will not bear argument. 

The remaining error assigned has regard to the sum for which 
the judgment is entered, it being for a greater amount than the 
29 



450 CASES ON CONSTITUTIONAL LAW: 

nominal amount of the bills of exchange on which the suit was 
brought, and which are found by the verdict. 

There has been a defect of explanation on this subject; but from 
the best information afforded us, we consider the amount for which 
judgment is entered, as made up of principal, interest, and dam- 
ages, and the latter as being legally incident to the finding of the 
bills of exchange, and their non-payment, and assessed by the 
court under a local practice consonant with that by which the 
amount of written contracts is determined, by reference to the 
j)rothonotary, in many other of our courts. We, therefore, see 
no error in it. The judgment below will, therefore, be af&rmed. 

And the purport of this adjudication, as I understand it, is, that 
as between citizens of the same State, a discharge of a bankrupt 
by the laws of that State is valid as it affects posterior contracts; 
that as against creditors, citizens of other States, it is invalid as to 
all contracts. 

The propositions which I have endeavored to maintain in the 
opinion which I have delivered are these: — 

1. That the power given to the United States to pass bankrupt 
laws is not exclusive. 

2. That the fair and ordinarj^ exercise of that power by the 
States does not necessarily involve a violation of the obligation 
of contracts, multi foi^tiori of posterior contracts. 

3. But when, in the exercise of that power, the States pass 
beyond their own hmits, and the rights of their own citizens, and 
act upon the rights of citizens of other States, there arises a con- 
flict of sovereign power, and a collision with the judicial powers 
granted to the United States, which renders the exercise of such 
a power incompatible with the rights of other States, and with 
the constitution of the United States. 

Mr. Justice Washington, Me. Justice Thompson, and Mr. 
Justice Trimble dissented. 

Mr. Chief Justice Marshall, Mr. Justice Duvall, and Mr. 
Justice Story, assented to the judgment, which was entered for 
the defendant in error. Judgment affirmed. 



CHARLES RIVER BRIDGE v. WARREN BRIDGE, 451 

THE PEOPRIETORS OF THE CHAELES EIVER BEIDGE 

V. THE PEOPEIETOES OF THE WAEEEN 

BEIDGE ET AL. 

11 Peters, 420. Decided 1837, 

Error to the supreme judicial court of the commonwealth of 
Massachusetts. The material facts and the nature of the case 
appear in the opinion of the court. . . . 

Taney, C. J., delivered the opinion of the court. 

The questions involved in this case are of the gravest char- 
acter, and the court have given to them the most anxious and 
deliberate consideration. The value of the right claimed by the 
plaintiffs is large in amount; and many persons may no doubt 
be seriously affected in their pecuniary interests by any decisions 
which the court may pronounce; and the questions which have 
been raised as to the power of the several States, in relation to 
the corporations they have chartered, are pregnant with impor- 
tant consequences; not only to the individuals who are concerned 
in the corporate franchises, but to the communities in which they 
exist. The court are fully sensible that it is their duty, in exer- 
cising the high powers conferred on them by the constitution of 
the United States, to deal with these great and extensive interests 
with the utmost caution; guarding, as far as they have the power 
to do so, the rights of property, and at the same time carefully ab- 
staining from any encroachment on the rights reserved to the 
States. 

It appears, from the record, that in the year 1650, the legisla- 
ture of Massachusetts granted to the president of Harvard College 
"the liberty and power" to dispose of the ferry from Charlestown 
to Boston, by lease or otherwise, in the behalf and for the behoof 
of the college; and that, under that grant, the college continued 
to hold and keep the ferry by its lessees or agents, and to receive 
the profits of it, until 1785, In the last-mentioned year, a peti- 
tion was presented to the legislature, by Thomas Eussell and others, 
stating the inconvenience of the transportation by ferries, over 
Charles Eiver, and the public advantages that would result from 
a bridge; and praying to be incorporated for the purpose of erect- 
ing a bridge in the place where the ferry between Boston and 
Charlestown was then kept. Pursuant to this petition, the legis- 
lature, on the 9th of March, 1785, passed an act incorporating a 



452 CASES ON CONSTITUTIONAL LAW. 

company, by the name of "The Proprietors of the Charles Eiver 
Bridge," for the purposes mentioned in the petition. Under this 
charter the company were empowered to erect a bridge, in '^'the 
place "where the ferry was then kept;" certain tolls were granted, 
and the charter was limited to forty years, from the first opening of 
the bridge for passengers; and from the time the toll commenced, 
nntil the expiration of this term, the company were to pay two 
hundred pounds, annually, to Harvard College; and at the expira- 
tion of the forty years the bridge was to be the property of the 
commonwealth; "saving (as the law expresses it), to the said col- 
lege or universitj', a reasonable annual compensation, for the an- 
nual income of the ferry, which they might have received had 
not the said bridge been erected." 

The bridge was accordingly built, and was opened for passen- 
gers on the ITth of June, 1T86. In 1?92, the charter was extended 
to seventy years, from the opening of the bridge; and at the ex- 
piration of that time it was to belong to the commonwealth. The 
corporation have regularly paid to the college the annual sum 
of two hundred pounds, and have performed all of the duties 
imposed on them by the terms of their charter. 

In 1828, the legislature of Massachusetts incorporated a com- 
pany by the name of "The Proprietors of the Warren Bridge," 
for the purpose of erecting another bridge over Charles Eiver. This 
bridge is only sixteen rods, at its commencement, on the Charles- 
town side, from the commencement of the bridge of the plaintiffs; 
and they are about fifty rods apart at their termination on the 
Boston side. The travelers who pass over either bridge, proceed 
from Charlestown square, which receives the travel of many great 
public roads leading from the country; and the passengers and 
travellers who go to and from Boston used to pass over the Charles 
Eiver Bridge, from and through this square, before the erection 
of the Warren Bridge. 

The Warren Bridge, by the terms of its charter, was to be sur- 
rendered to the State, as soon as the expenses of the proprietors 
in building and supporting it should be reimbursed; but this 
period was not, in any event, to exceed six years from the time 
the company commenced receiving toll. 

Wlien the original bill in this case was filed, the Warren Bridge 
had not been built; and the bill was filed after the passage of 
the law, in order to obtain an injunction to prevent its erection, 
and for general relief. The bill, among other things, charged, 
as a ground for relief, that the act for the erection of the Warren 
Bridge impaired the obligation of the contract between the com- 



CHARLES RIVER BRIDGE v. WARREN BRIDGE. 453 

monwealth and the proprietors of the Charles Eiver Brido-e; and 
was therefore repugnant to the constitution of the United States. 
Afterwards, a supplemental bill was filed, stating that the bridge 
had then been so far completed, that it had been opened for 
travel, and that divers persons had passed over, and thus avoided 
the payment of the toll, which would otherwise have been received 
by the plaintiffs. The answer to the supplemental bill admitted 
that the bridge had been so far completed that foot passengers 
could pass; but denied that any persons but the workmen and 
the superintendents had passed over with their consent. In this 
state of the pleadings, the cause came on for hearing in the 
supreme judicial court for the county of Suffolk, in the common- 
wealth of Massachusetts, at November term, 1829; and the court 
decided that the act incorporating the Warren Bridge did not 
impair the obligation of the contract with the proprietors of the 
Charles Eiver Bridge, and dismissed the complainants' bill: and 
the case is brought here by writ of error from that decision. It 
is, hoAvever, proper to state, that it is understood that the state 
court was equally divided upon the question; and that the decree 
dismissing the bill upon the ground above stated, was pronounced 
by a majority of the court, for the purpose of enabling the com- 
plainants to bring the question for decision before this court. 

In the argument here, it was admitted, that since the filing of 
the supplemental bill, a sufficient amount of toll had been received 
by the proprietors of the Warren Bridge to reimburse all their 
expenses, and that the bridge is now the property of the State, and 
has been made a free bridge; and that the value of the franchise 
granted to the proprietors of the Charles Eiver Bridge has by 
this means been entirely destroyed. 

If the complainants deemed these facts material, they ought to 
have been brought before the state court, by a supplemental bill; 
and this court, in pronouncing its judgment, cannot regularly 
notice them. But in the view which the court take of this sub- 
ject, these additional circumstances would not in any degree influ- 
ence their decision. And as they are conceded to be true, and the 
case has been argued on that ground, and the controversy has been 
for a long time depending, and all parties desire a final end of it; 
and as it is of importance to them, that the principles on which 
this court decide should not be misunderstood, the case will be 
treated in the opinion now delivered, as if these admitted facts 
were regularly before us, 

A good deal of evidence has been offered to show the nature 
and extent of the ferry right granted to the college; and also to 



454 CASES ON CONSTITUTIONAL LAW. 

show tlie rights claimed by the proprietors of the bridge at dif- 
ferent times, by virtue of their charter; and the opinions enter- 
tained by committees of the legislature, and others, upon that 
subject. But as these circumstances do not affect the judgment 
of this court, it is unnecessary to recapitulate them. 

The plaintiffs in error insist, mainly, upon t\ro grounds: 
1. That by virtue of the grant of 1650, Harvard College was 
entitled, in perpetuity, to the right of keeping' a ferry between 
Charlestown and Boston; that this right was exclusive; and that 
the legislature had not the power to establish another ferry on the 
same line of travel, because it would infringe the rights of the 
college; and that these rights, upon the erection of the bridge in 
the place of the ferry, under the charter of 1785, were transferred 
to, and became vested in "the proprietors of the Charles Eiver 
Bridge;" and that under, and by virtue of this transfer of the 
ferry right, the rights of the bridge company were as exclusive 
in that line of travel, as the rights of the ferry. 2. That inde- 
pendently of the ferry right, the acts of the legislature of Massa- 
chusetts of 1785 and 1792, by their true construction, necessarily 
implied that the legislature would not authorize another bridge, 
and especially a free one, by the side of this, and placed in the 
same line of travel, whereby the franchise granted to the "pro- 
prietors of the Charles Eiver Bridge" should be rendered of no 
value; and the plaintiffs in error contend, that the grant of J:he 
ferry to the college^ and of the charter to the proprietors of the 
bridge, are both contracts on the part of the State; and that the 
law authorizing the erection of the "Warren Bridge in 1828 impairs 
the obligation of one or both of these contracts. 

It is very clear, that in the form in which this case comes before 
us, being a writ of error to a state court, the plaintiffs, in claim- 
ing under either of these rights, must place themselves on the 
ground of contract, and cannot support themselves upon the prin- 
ciple that the law divests vested rights. It is well settled by the 
decisions of this court, that a state law may be retrospective in its 
character, and may divest vested rights, and yet not violate the 
constitution of the United States, unless it also impairs the obli- 
gation of a contract. In 2 Peters, 413, Satterlee v. Matthewson, 
this court, in speaking of the state law then before them, and inter- 
preting the article in the constitution of the United States which 
forbids the States to pass laws impairing the obligation of con- 
tracts, uses the following language: 'Tt (the state law) is said to 
be retrospective; be it so. But retrospective laws which do 
not impair the obligation of contracts, or partake of the character 



CHARLES RIVER BRIDGE v. WARREN BRIDGE. 455 

of ex post facto laws, are not condemned or forbidden by any part 
of that instrument" (the constitution of the United States). And 
in another passage in the same case, the court say: "The objec- 
tion, however, most pressed upon the court, and relied upon by 
the counsel for the plaintiff in error, was, that the effect of this 
act was to divest rights which were vested by law in Satterlee. 
There is certainly no part of the constitution of the United States 
which applies to a state law of this description; nor are we aware 
of any decision of this, or of any circuit court, which has con- 
demned such a law upon this ground, provided its effect be not 
to impair the obligation of a contract." The same principles were 
reaffirmed in this court, in the late case of Watson and others v. 
Mercer, decided in 1834, 8 Pet., 110: "As to the first point (say 
the court), it is clear that this court has no right to pronounce 
an act of the state legislature void, as contrary to the constitution 
of the United States, from the mere fact that it divests antecedent 
vested rights of property. The constitution of the United States 
does not j^rohibit the States from passing retrospective laws gen- 
erally, but only ex post facto laws." 

After these solemn decisions of this court, it is apparent that 
the plaintiffs in error cannot sustain themselves here, either upon 
the ferry right, or the charter to the bridge, upon the ground 
that vested rights of property have been divested by the legisla- 
ture. And whether they claim under the ferry right, or the char- 
ter to the bridge, they must show that the title which they claim, 
was acquired by contract, and that the terms of that contract have 
been violated by the charter to the Warren Bridge. In other 
words, they must show that the State had entered into a contract 
with them, or those under whom they claim, not to establish a 
free bridge at the place where the Warren Bridge is erected. Such, 
and such only, are the principles upon which the plaintiffs in error 
can claim relief in this case. 

The nature and extent of the ferry right granted to Harvard 
College, in 1650, must depend upon the laws of Massachusetts; 
and the character and extent of this right has been elaborately 
discussed at the bar. But in the view which the court take of the 
case before them, it is not necessary to express any opinion on 
these questions. For assuming that the grant to Harvard College, 
and the charter to the bridge company, were both contracts, and 
that the ferry right was as extensive and exclusive as the plain- 
tiffs contend for; still they cannot enlarge the privileges granted to 
the bridge, unless it can be shown, that the rights of Harvard 
College in this ferry have, by assignment, or in some other way. 



456 CASES ON CONSTITUTIONAL LAW. 

been transferred to the jDroi^rietors of the Charles Eiver Bridge, 
and still remain in existence, vested in them, to the same extent 
with that in which they were held and enjoyed by the college 
before the bridge was built. . . . [The court holds that this 
cannot be shown.] 

It is however said, that the payment of the £200 a year to the 
college, as provided for in the law, gives to the proprietors of the 
bridge an equitable claim to be treated as the assignees of their 
interest; and by substitution, upon chancery principles, to be 
clothed with all their rights. 

The answer to this argument is obvious. This annual sum was 
intended to be paid out of the proceeds of the tolls which the 
company were authorized to collect. The amount of the tolls, 
it must be assumed, was graduated with a view to this encum- 
brance, as well as to every other expenditure to which the com- 
pany might be subjected, under the provisions of their charter. 
The tolls were to be collected from the public, and it was intended 
that the expense of the annuity to Har^^ard College should he 
borne by the public; and it is manifest that it was so borne, from 
the amount which it is admitted they received, until the Warren 
Bridge was erected. Their agreement, therefore, to pay that sum 
can give no equitable right to be regarded as the assignees of the 
college, and certainly can furnish no foundation for presuming 
a conveyance; and as the proprietors of the bridge are neither 
the legal nor equitable assignees of the college, it is not easy to per- 
ceive how the feriy franchise can be invoked in aid of their claims, 
if it were even still a subsisting privilege; and had not been re- 
sumed by the State, for the purpose of building a bridge in its 
place. 

ISTeither can the extent of the pre-existing ferry right, whatever 
it may have been, have any influence upon the construction of the 
written charter for the bridge. It does not, by any means, follow, 
that because the legislative power in Massachusetts, in 1650, may 
have granted to a justly favored seminary of learning the exclusive 
right of ferry between Boston and Charlestown, they would, in 
1785, give the same extensive privilege to another corporation, 
who were about to erect a bridge in the same place. The fact that 
such a right was granted to the college cannot, by any sound 
rule of construction, be used to extend the privileges of the bridge 
company beyond what the words of the charter naturally and legally 
import. Increased population longer experienced in legislation, 
the different character of the corporation which owned the ferry 
from that which owned the bridge, might well have induced a 



CHARLES RIVER BRIDGE V. WARREN BRIDGE. 457 

change in the policy of the State in this respect; and as the 
franchise of the ferry, and that of the bridge, are different in 
their nature, and were each established by separate grants, which 
have no words to connect the privileges of the one with the privi- 
leges of the other, there is no rule of legal interpretation which 
would authorize the court to associate these grants together, and 
to infer that any privilege was intended to be given to the bridge 
company, merely because it had been confererd on the ferry. The 
charter to the l3ridge is a written instrument which must speak 
for itself, and be interpreted by its own terms. 

This brings us to the act of the legislature of Massachusetts, 
of 1785, by which the plaintiffs were incorporated by the name 
of "The Proprietors of the Charles Eiver Bridge;" and it is here, 
and in the law of 1792, prolonging their charter, that we must look 
for the extent and nature of the franchise conferred upon the 
plaintiffs. 

Much has been said in the argument of the principles of con- 
struction by which this law is to be expounded, and what under- 
takings, on the part of the State, may be implied. The court 
think there can be no serious difficulty on that head. It is the 
grant of certain franchises by the public to a private corporation, 
and in a matter where the public interest is concerned. The rule 
of construction in such cases is well settled, both in England and 
by the decisions of our own tribunals. In 2 Barn. & Adol., 793, 
in the case of the proprietors of the Stourbridge Canal v. 
Wlieeley and others, the court say, "The canal having been made 
under an act of parliament, the rights of the plaintiffs are derived 
entirely from that act. This, like many other cases, is a bargain 
between a company of adventurers and the public, the terms of 
which are expressed in the statute; and the rule of construction, 
in all such cases, is now fully established to be this; that any 
ambiguity in the terms of the contract must operate against the 
adventurers, and in favor of the public, and the plaintiffs can claim 
nothing that is not clearly given them by the act." And the doc- 
trine thus laid down is abundantly sustained by the authorities 
referred to in this decision. The case itself was as strong a one 
as could well be imagined for giving to the canal company, by 
implication, a right to the tolls they demanded. Their canal had 
been used by the defendants, to a very considerable extent, in 
transporting large quantities of coal. The rights of all persons 
to navigate the canal were expressly secured by the act of parlia- 
ment; so that the company could not prevent them from using 
it, and the toll demanded was admitted to be reasonable. Yet, 



458 CASES ON CONSTITUTIONAL LAW. 

as they only used one of the levels of the canal, and did not pass 
through the locks; and the statute, in giving the right to exact 
toll, had given it for articles which jDassed "through any one or 
laore of the locks," and had said nothing as to toll for navigating 
one of the levels; the court held that the right to demand toll, in 
the latter case, could not be implied, and that the company were 
not entitled to recover it. This was a fair case for an equitable 
construction of the act of incorporation, and for an implied grant; 
if such a rule of construction could ever be permitted in a law of 
that description. For the canal had been made at the expense 
of the company; the defendants had availed themselves of the 
iruits of their labors, and used the canal freely and extensively 
for their own profit. Still the right to exact toll could not be 
implied, because such a privilege was not found in the charter. 

Borrowing, as we have done, our system of jurisprudence from 
the English law; and having adopted, in every other case, civil 
and criminal, its rules for the construction of statutes; is there 
anything in our local situation, or in the nature of our political 
institutions, which should .lead us to depart from the principle 
where corporations are concerned? Are we to apply to acts of 
incorporation a rule of construction differing from that of the Eng- 
lish law, and, by implication, make the terms of a charter in one 
of the States, more unfavorable to the public, than upon an act of 
parliament, framed in the same words, would be sanctioned in an 
English court? Can any good reason be assigned for excepting 
this particular class of cases from the operation of the general 
principle, and for introducing a new and adverse rule of construc- 
tion in favor of corporations, while we adopt and adhere to the 
rules of construction known to the English common law, in every 
other case, without exception? We think not; and it would present 
a singular spectacle, if, while the courts in England are restrain- 
ing, within the strictest limits, the spirit of monopoly, and exclu- 
sive privileges in nature of monopolies, and confining corporations 
to the privileges plainly given to them in their charter, the courts 
of this country should be found enlarging these privileges by 
implication; and construing a statute more unfavorably to the 
public, and to the rights of the community, than would be done 
in a like case in an English court of justice. 

But we are not now left to determine, for the first time, the rules 
by which public grants are to be construed in this country. The 
subject has already been considered in this court; and the rule 
of construction, above stated, fully established. [Here follow 



CHARLES RIVER BRIDGE v. WARREN BRIDGE 459 

citations to U. S. v. Arredondo, 6 Pet., 738; Jackson v. Lam- 
phire, 3 Pet., 289; and Beaty v. The Lessee of Knowles, 4 Pet., 
168.] 

But the case most analogous to this, and in which the question 
came more directly before the court, is the case of the Providence 
Bank v. Billings and Pittman, 4 Pet., 514, and which was decided 
in 1830. In that case, it appeared that the legislature of Rhode 
Island had chartered the bank, in the usual form of such acts 
of incorporation. The charter contained no stipulation on the part 
of the State, that it would not impose a tax on the bank, nor any 
reservation of the right to do so. It was silent on this point. 
Afterwards, a law was passed, imposing a tax on all banks in the 
State; and the right to impose this tax was resisted by the Provi- 
dence Bank, upon the ground that, if the State could impose a tax, 
it might tax so heavily as to render the franchise of no value, 
and destroy the institution; that the charter was a contract, and 
that a power which may in effect destroy the charter is inconsistent 
with it, and is impliedly renounced by granting it. But the court 
said that the taxing power was of vital importance, and essential 
to the existence of government; and that the relinquishment of 
such a power is never to be assumed. And in delivering the opin- 
ion of the court, the late chief justice states the principle, in 
the following clear and emphatic language. Speaking of the 
taxing power, he says, "as the whole community is interested in 
retaining it undiminished, that community has a right to insist 
that its abandonment ought not to be presumed, in a case in 
which the deliberate purpose of the State to abandon it does not 
appear." The case now before the court is, in principle, precisely 
the same. It is a charter from a State. The act of incorpora- 
tion is silent in relation to the contested power. The argu- 
ment in favor of the proprietors of the Charles Eiver Bridge is 
the same, almost in words, with that used by the Providence 
Bank; that is, that the power claimed by the State, if it exists, 
may be so used as to destroy the value of the franchise they have 
granted to the corporation. The argument must receive the same 
answer; and the fact that the power has been already exercised 
so as to destroy the value of the franchise, cannot in any degree 
affect the principle. The existence of the power does not, and 
cannot, depend upon the circumstance of its having been exercised 
or not. 

It may, perhaps, be said that in the case of the Providence Bank, 
this court were speaking of the taxing powder; which is of vital 
importance to the very existence of every government. But the 
object and end of all government is to promote the happiness 



460 CASES ON CONSTITUTIONAL LAW. 

and prosperity of the community by which it is established; and it 
can never be assumed, that the government intended to diminish 
its power of accomplishing the end for which it was created. And 
in a country like ours, free, active, and enterprising, continually 
advancing in numbers and wealth, new channels of communica- 
tion are daily found necessary, both for travel and trade; and are 
essential to the comfort, convenience, and prosperity of the peo- 
ple. A State ought never to be presumed to surrender this power, 
because, like the taxing power, the whole community have an 
interest in preserving it undiminished. And when a corporation 
alleges, that a State has surrendered, for seventy years, its power 
of improvement and public accommodation, in a great and impor- 
tant line of travel, along which a vast number of its citizens must 
daily pass, the community have a right to insist, in the language 
of this court above quoted, "that its abandonment ought not to 
be presumed in a case in which the deliberate purpose of the State 
to abandon it does not appear." The continued existence of a gov- 
ernment would be of no great value, if by implications and pre- 
sumptions it was disarmed of the powers necessary to accomplish 
the ends of its creation; and the functions it was designed to 
perform, transferred to the hands of privileged corporations. The 
rule of construction announced by the court was not confined to 
the taxing power; nor is it so limited in the opinion delivered. 
On the contrary, it was distinctly placed on the ground that the 
interests of the community were concerned in preserving, imdi- 
minished, the power then in question; and whenever any power 
of the State is said to be surrendered or diminished, whether it 
be the taxing power or any other affecting the public interest, the 
same principle applies, and the rule of construction must be the 
same. No one will question that the interests of the great body 
of the people of the State would, in this instance, be affected by 
the surrender of this great line of travel to a single corporation, 
with the right to exact toll, and exclude competition for seventy 
years. Wliile the rights of private property are sacredly guarded, 
we must not forget that the community also have rights, and that 
the happiness and well-being of every citizen depends on their 
faithful preservation. 

Adopting the rule of construction above stated as the settled 
one, we proceed to apply it to the charter of 1785 to the proprietors 
of the Charles Eiver Bridge. This act of incorporation is in the 
usual form, and the privileges such as are commonly given to cor- 
porations of that kind. It confers on them the ordinary faculties 
of a corporation, for the purpose of building the bridge; and 



CHARLES RIVER BRIDGE v. WARREN BRIDGE. 461 

establishes certain rates of toll, which the company are author- 
ized to take. This is the whole grant. There is no exclusive priv- 
ilege given to them over the waters of Charles Eiver above or 
below their bridge. No right to erect another bridge themselves, 
nor to prevent other persons from erecting one. No engagement 
from the State that another shall not be erected; and no under- 
taking not to sanction competition, nor to make improvements 
that may diminish the amount of its income. Upon all these sub- 
jects the charter is silent; and nothing is said in it about a line 
of travel, so much insisted on in the argument, in which they 
are to have exclusive privileges. No words are used from which an 
intention to grant any of these rights can be inferred. If the 
plaintiff is entitled to them, it must be implied, simply from the 
nature of the grant, and cannot be inferred from the words by 
which the grant is made. 

The relative position of the Warren Bridge has already been de- 
scribed. It does not interrupt the passage over the Charles River 
Bridge, nor make the way to it or from it less convenient. None 
of the faculties or franchises granted to that corporation have 
been revoked by the legislature; and its right to take the tolls 
granted by the charter remains unaltered. In short, all the fran- 
chises and rights of property enumerated in the charter, and there 
mentioned to have been granted to it remain unimpaired. But 
its income is destroyed by the Warren Bridge; which, being free, 
draws off the passengers and property which would have gone 
over it, and renders their franchise of no value. This is the 
gist of the complaint. For it is not pretended that the erection 
of the Warren Bridge would have done them any injury, or in 
any degree affected their right of property, if it had not dimin- 
ished the amount of their tolls. In order then to entitle them- 
selves to relief, it is necessary to show that the legislature con- 
tracted not to do the act of which they complain; and that 
they impaired or, in other words, violated that contract by the 
erection of the Warren Bridge. 

The inquiry then is, does the charter contain such a contract 
on the part of the State? Is there any such stipulation to be found 
in that instrument? It must be admitted on all hands, that there 
is none, — no words that even relate to another bridge, or to the 
diminution of their tolls, or to the line of travel. If a contract 
on that subject can be gathered from the charter, it must be by 
implication, and cannot be found in the words used. Can sueli 
an agreement be implied? The rule of construction before stated 
is an answer to the question. In charters of this description, no 



•i62 CASES ON CONSTITUTIONAL LAW. 

rights are taken from the public, or given to the corporation, 
beyond those which the words of the charter, by their natural and 
proper construction, purport to convey. There are no words which 
import such a contract as the plaintiffs in error contend for, and 
none can be implied; and the same answer must be given to them 
that was given by this court to the Providence Bank. The whole 
community are interested in this inquiry, and they have a right to 
require that the power of promoting their comfort and conveni- 
ence, and of advancing the public prosperity by providing safe, 
convenient, and cheap ways for the transportation of produce and 
the purposes of travel, shall not be construed to have been surren- 
dered or diminished by the State, unless it shall appear by plain 
words that it was intended to be done. 

But the case before the court is even still stronger against 
any such implied contract as the plaintiffs in error contend for. 
The Charles Eiver Bridge was completed in 1786. The time 
limited for the duration of the corporation by their original char- 
ter expired in 1826. When, therefore, the law passed author- 
izing the erection of the Warren Bridge, the proprietors of Charles 
River Bridge held their corporate existence under the law of 1792, 
which extended their charter for thirty years; and the rights, 
privileges, and franchises of the company must depend upon the 
construction of the last-mentioned law, taken in connection with 
the act of 1785. 

The act of 1792, which extends the charter of this bridge, incor- 
porates another company to build a bridge over Charles Eiver; 
furnishing another communication with Boston, and distant only 
between one and two miles from the old bridge. 

The first six sections of this act incorporate the proprietors of 
the West Boston Bridge, and define the privileges, and describe 
the duties, of that corporation. In the 7th section there is the 
following recital: "And whereas the erection of Charles Eiver 
Bridge was a work of hazard and public utility, and another bridge 
in the place of West Boston Bridge may diminish the emoluments 
of Charles Eiver Bridge; therefore, for the encouragement of enter- 
prise,"' they proceed to extend the charter of the Charles Eiver 
Bridge, and to continue it for the term of seventy years from, the 
day the bridge was completed; subject to the conditions prescribed 
in the original act, and to be entitled to the same tolls. It appears, 
then, that by the same act that extended this charter, the legisla- 
ture established another bridge, which they knew would lessen 
its profits; and this, too, before the expiration of the first charter. 



CHARLES RIVER BRIDGE v. WARREN BRIDGE. 463 

and only seven years after it was granted; thereby showing tiiat the 
State did not suppose that, by the terms it had used in the first 
law, it had deprived itself of the power of making such public 
improvements as might impair the profits of the Charles Eiver 
Bridge; and from the language used in the clauses of the law by 
which the charter is extended, it would seem, that the legislature 
were especially careful to exclude any inference that the exten- 
sion was made upon the ground of compromise with the bridge 
company, or as a compensation for rights impaired. 

On the contrary, w^ords are cautiously employed to exclude that 
conclusion; and the extension is declared to be granted as a reward 
for the hazard they had run, and "for the encouragement of enter- 
prise." The extension was given because the company had under- 
taken and executed a work of doubtful success; and the improve- 
ments which the legislature then contemplated, might diminish 
the emoluments they had expected to receive from it. It results 
from this statement, that the legislature, in the very law extend- 
ing the charter, asserts its rights to authorize improvements over 
Charles Eiver which would take off a portion of the travel from 
this bridge and diminish its profits; and the bridge company 
accept the renew^al thus given, and thus carefully connected wdth 
this assertion of the right on the part of the State. Can they, 
when holding their corporate existence under this law, and de- 
riving their franchises altogether from it, add to the privileges, 
expressed in their charter an implied agreement, which is in direct 
conflict with a jDortion of the law from which they derive their 
corporate existence? Can the legislature be presumed to have 
taken upon themselves an implied obligation, contrary to its own 
acts and declarations contained in the same law? It would be 
difficult to find a case justifying such an implication, even between 
individuals; still less will it be found where sovereign rights are 
concerned, and where the interests of a whole community would 
be deeply affected by such an implication. It would, indeed, be 
a strong exertion of judicial power, acting upon its own views 
of what justice required, and the parties ought to have done, to 
raise, by a sort of judicial coercion, an implied contract, and infer 
it from the nature of the very instrument in which the legislature 
appear to have taken pains to use words which disavow and repu- 
diate any intention, on the part of the State, to make such a 
contract. 

Indeed, the practice and usage of almost every State in the 
Union, old enough to have commenced the work of internal im- 



464 CASES ON CONSTITUTIONAL LAW. 

IDrovement^ is opposed to the doctrine contended for on the part 
of the plaintiffs in error. Turnpike roads have been made in suc- 
cession, on the same line of travel; the latter one interfering ma- 
teriall}' with the profits of the first. These corporations have, in 
some instances, been utterly ruined by the introduction of newer 
and better modes of transportation and traveling. In some cases, 
railroads have rendered the turnpike roads on the same line of 
travel so entirely useless, that the franchise of the turnpike cor- 
poration is not worth preserving. Yet in none of these cases 
have the corporations supposed that their privileges were invaded, 
or any contract violated on the part of the State. Amid the mul- 
titude of cases which have occurred, and have been daily occurring 
for the last forty or fifty years, this is the first instance in which 
such an implied contract has been contended for, and this court 
called upon to infer it from an ordinary act of incorporation, 
containing nothing more than the usual stipulations and provi- 
sions to be found in every such law. The absence of any such con- 
troversy, when there must have been so many occasions to give 
rise to it, proves that neither States, nor individuals, nor corpora- 
tions, ever imagined that such a contract could be implied from 
such charters. It shows that the men who voted for these laws 
never imagined that they were forming such a contract; and if 
we maintain that they have made it, we must create it by a legal 
fiction, in opposition to the truth of the fact, and the obvious 
intention of the party. We cannot deal thus with the rights 
reserved to the States, and by legal intendments and mere tech- 
nical rersoning take away from them any portion of that power 
over their own internal police and improvement which is so neces- 
sary to their well-being and prosperity. 

And what would be the fruits of this doctrine of implied con- 
tracts on the part of the States, and of property in a line of 
travel by a corporation, if it should now be sanctioned by this 
court? To what results would it lead us? If it is to be found 
in the charter to this bridge, the same process of reasoning must 
discover it, in the various acts which have been passed, within 
the last forty years, for turnpike companies. And what is to be 
the extent of the privileges of exclusion on the different sides of 
the road? The counsel who have so ably argued this case have 
not attempted to define it by any certain boundaries. How far 
must the new improvement be distant from the old one? How 
near may you approach without invading its rights in the privileged 
line? If this court should establish the principles now contended 



CHARLES RIVER BRIDGE v. WARREN BRIDGE. 465 

for, what is to become of the numerous raih'oads established on 
the same line of travel with turnpike companies; and which have 
rendered the franchises of the turnpike corporations of no value? 
Let it once be understood that such charters carry with them 
these implied contracts, and give this unknown and undefined 
property in a line of travelling, and you will soon find the old turn- 
pike corporations awakening from their sleep and calling upon 
this court to put down the improvements which have taken their 
place. The millions of property which have been invested in rail- 
roads and canals upon lines of travel which had been before occu- 
pied by turnpike corporations will be put in jeopardy. We shall 
be thrown back to the improvements of the last century, and 
obliged to stand still until the claims of the old turnpike cor- 
porations shall be satisfied, and they shall consent to permit these 
States to avail themselves of the lights of modern science, and. to 
partake of the benefit of those improvements which are now add- 
ing to the wealth and prosperity, and the convenience and com- 
fort, of every other part of the civilized world. Nor is this all. 
This court will find itself compelled to fix, by some arbitrary rule, 
the width of this new kind of property in a line of travel; for if 
such a right of property exists, we have no lights to guide us in 
marking out its extent, unless, indeed, we resort to the old feudal 
grants, and to the exclusive rights of ferries, by prescription, 
between towns, and are prepared to decide that when a turnpike 
road from one town to another had been made, no railroad or canal, 
between these two points, could afterwards be established. ' This 
court are not prepared to sanction principles which musi lead to 
such results. 

Many other questions of the deepest importance have been 
raised and elaborately discussed in the argument. It is not nec- 
essary, for the decision of this case, to express our opinion upon 
them; and the court deem it proper to avoid volunteering an opin- 
ion on any question involving the construction of the constitution, 
where the case itself does not bring the question directly before 
them, and make it their duty to decide upon it. 

Some questions, also, of a purely technical character have been 
made and argued as .to the form of proceeding and the right to 
relief. But enough appears on the record to bring out the great 
question in contest; and it is the interest of all parties concerned 
that the real controversy should be settled without further delay; 
and as the opinion of the court is pronounced on the main ques- 
tion in dispute here, and disposes of the whole case, it is altogether 

30 



466 CASES ON CONSTITUTIONAL LAW. 

unnecessary to enter upon the examination of the forms of pro- 
ceeding in which the parties have brought it before the court. 

Tlie judgment of the supreme judicial court of the commonwealth 
of Massachusetts, dismissing the plaintiffs^ lill, must, therefore, 
ie affirmed, with costs. 

[Me. Justice McLean delivered an opinion in which he argued 
that the case should be dismissed for want of jurisdiction. Me. 
Justice Stoet delivered a dissenting opinion, in which Me. 
Justice Teompsox concurred.] 



XI. CIVIL AND POLITICAL RIGHTS. 



BAEEOK, Etc., v. MAYOE, Etc., of BALTIMORE. 
7 Peters, 243. Decided 1833. 

Eeeor to the court of appeals of the western shore of the State 
of Maryland. 

Case by the plaintiff in en'or against the city of Baltimore, to re- 
recover damages for injuries to the wharf-property of the plaintiff, 
arising from the acts of the corporation 

The city, in the asserted exercise of its corporate authority over 
the harbor, the paving of streets, ai?d regulating grades for paving, 
and over the health of Baltimore, diverted from their accustomed 
and natural course, certain streams of water, which flow from the 
range of hills bordering the city, and diverted them, so that they 
made deposits of sand and gravel near the plaintiff's wharf, and 
thereby rendered the water shallow, and prevented the access of 
vessels. The decision of Baltimore county court was against the 
defendants, and a verdict for $4,500 was rendered for the plaintiff. 
The court of appeals reversed the judgment of Baltimore county 
court, and did not remand the case to that court for a further 
trial. From this judgment the defendant in the court of appeals 
prosecuted a writ of error to this court. . . . 

Marshall, C. J., delivered the opinion of the court. 

The judgment brought up by this writ of error having been ren- 
dered by the court of a State, this tribunal can exercise no jurisdic- 
tion over it, unless it be shown to come within the provisions of the 
25th section of the Judicial Act.^ 

The plaintiff in error contends that it comes within that clause 
in the fifth amendment to the constitution, which inhibits the tak- 
ing of private property for public use, without just compensation. 
He insists that this amendment, being in favor of the liberty of 
the citizen, ought to be so construed as to restrain the legislative 
power of a State, as well as that of the United States. If this 
1 1 Stats, at Large, 85. 
467 



468 CASES ON CONSTITUTIONAL LAW. 

proi3osition be untrue^, the court can take no jurisdiction of the 
cause. 

The question thus presented is^, we think, of great importance, 
hut not of much difficulty. 

The constitution was or-dained and established by the people of 
the United States for themselves, for their own government, and 
not for the government of the individual States. Each State es- 
tablished a constitution for itself, and, in that constitution, pro- 
vided such limitations and resti-ictions on the powers of its partic- 
ular government as its judgment dictated. The people of the 
United States framed such a government for the United States as 
they supposed best adapted to their situation, and best calculated 
to promote their interests. The powers they conferred on this 
government were to be exercised by itself; and the limitations on 
power, if expressed in general terms, are naturally, and, we think, 
necessarily applicable to the government created by the instrument. 
They are limitations of power granted in the instrument itself; not 
of distinct governments, framed by different persons and for dif- 
ferent purposes. 

If these propositions be coTrect, the fifth amendment must be 
understood as restraining the power of the general government, 
not as applicable to the States. In their several constitutions they 
have imposed such restrictions on their respective governments as 
their own wisdom suggested; such as they deemed most proper 
for themselves. It is a subject on which they judge exclusively, 
and with v\-hich others interfere no further than they are sup- 
posed to have a common interest. 

The counsel for the plaintiff in error insists that the constitu- 
tion was intended to secure the people of the several States against 
the undue exercise of power by their respective state governments; 
as well as against that which might be attempted by their general 
government. In support of this argument he relies on the inhibi- 
tions contained in the 10th section of the 1st article. 

We think that section affords a strong if not a conclusive argu- 
ment in sui:)port of the opinion already indicated by the court. 

The preceding section contains restrictions which are obviously 
intended for the exclusive purpose of restraining the exercise of 
power by the departments of the general government. Some of 
them use language applicable only to congress; others are expressed 
in general terms. The third clause, for example, declares that "no 
bill of attainder or ex post facto law shall be passed." No lan- 
guage can be more general; yet the demonstration is complete that 



BARRON V. MAYOR, ETC., OF BALTIMORE. 469 

it applies solely to the government of the United States. In addi- 
tion to the general arguments furnished by the instrument itself, 
some of which have been already suggested, the succeeding sec- 
tion, the avowed purpose of which is to restrain state legislation, 
contains in terms the very prohibition. It declares that "no State 
shall pass any bill of attainder or ex post facto law." This pro- 
vision, then, of the 9th section, however comprehensive its lan- 
guage, contains no restriction o^n state legislation. 

The 9th section having enumerated, in the nature of a bill of 
rights, the limitations intended to be imposed on the powers of 
the general government, the 10th proceeds to enumerate those 
which were to operate on the state legislatures. These restrictions 
are brought together in the same section, and are by express words 
applied to the States. "'No State shall enter into any treaty," etc. 
Perceiving that in a constitution framed by the people of the 
United States for the government of all, no limitation of the action 
of government on the people would apply to the state government, 
unless expressed in terms; the restrictions contained in the 10th 
section are in direct words so applied to the States. 

It is worthy of remark, too, that these inhibitions generally re- 
strain state legislation on subjects intrusted to the general govern- 
ment, or in which the people of all the States feel an interest. 

A State is forbidden to enter into any treaty, alliance, or confed- 
eration. If these compacts are with foreign nations, they interfere 
with the treaty-making power, which is conferred entirely on the 
general government; if with each other, for political purposes, they 
can scarcely fail to interfere with the general purpose and intent 
of the constitution. To grant letters of marque and reprisal, would 
lead directly to war; the power of declaring which is expressly 
given to congress. To coin money is also the exercise of a power 
conferred on congress. It would be tedious to recapitulate the 
several limitations on the powers of the States which are contained 
in this section. They will be found, generally, to restrain state 
legislation on subjects intrusted to the government of the Union, 
in which the citizens of all the States are interested. In these 
alone were the whole people concerned. The question of their 
application to States is not left to construction. It is averred in 
positive words. 

If the original constitution, in the 9th and 10th sections of the 
1st article, draws this plain and marked line of discrimination 
between the limitations it imposes on the powers of the general 
government, and on those of the States; if in every inhibition in- 



470 CASES ON CONSTITUTIONAL LAW. 

tended to act on state power, words are employed wMch directly 
express tliat intent, — some strong reason must be assigned for 
departing from this safe and judicious course in framing the 
amendments, before that departure can be assumed. 

We search in vain for that reason. 

Had the people of the several States, or any of them, required 
changes in their constitutions; had they required additional safe- 
guards to liberty from the apprehended encroachments of their 
particular governments; the remedy was in their own hands, and 
would have been applied by themselves. A convention would have 
been assembled by the discontented State, and the required im- 
provements would have been made by itself. The unwieldy and 
cumbrous machinery of procuring a recommendation from two 
thirds of congress, and the assent of three fourths of their sister 
States, could never have occurred to any human being as a mode 
of doing that which might be effected by the State itself. Had 
the framers of these amendments intended them to be limitations 
on the powers of the state governments, they would have imitated 
the framers of the original constitution, and have expressed that 
intention. Had congress engaged in the extraordinary occupation 
of improving the constitutions of the several States by affording 
the people additional protection from the exercise of power by 
their own governments in matters which concerned themselves 
alone, they would have declared this purpose in plain and intel- 
ligible language. 

But it is universally understood, it is a part of the history of 
the day, that the great revolution which established the constitu- 
tion of the United States was not effected without immense oppo- 
sition. Serious fears were extensively entertained that those 
powers which the patriot statesmen, who then watched over the 
interests of our country, deemed essential to union, and to the 
attainment of those invaluable objects for which union was sought, 
might be exercised in a manner dangerous to liberty. In almost 
every convention by which the constitution was adopted, amend- 
ments to guard against the abuse of power were recommended. 
These amendments demanded security against the apprehended en- 
croachments of the general government, not against those of the 
local governments. 

In compliance with a sentiment thus generally expressed to quiet 
fears thus extensively entertained, amendments were proposed by 
the required majority in congress, and adopted by the States, 
These amendments contain no expression indicating an intention 



SCOTT V. SANDFORD. 471 

to apply them to the state governments. This court cannot so 
apply them. 

We are of opinion that the provision in the fifth amendment to 
the constitution, declaring that private property shall not be taken 
for public use without just compensation, is intended solely as a 
limitation on the exercise of power by the government of the United 
States, and is not applicable to the legislation of the States. We 
are therefore of opinion, that there is no repugnancy between the 
several acts of the general assembly of Maryland, given in evidence 
by the defendants at the trial of this cause, in the court of that 
State, and the constitution of the United States. This court, 
therefore, has no jurisdiction of the cause; and it is dismissed. 



DEED SCOTT, Plaintiff in Ereoe, v. JOHN F. A. SAND- 
FORD. 

19 Howard, 393. Decided 1857. 

This ease was brought up, by writ of error, from the Circuit 
Court of the United States for the district of Missouri. . . . 
[In 1834, Dred Scott, a negro slave belonging to Dr. Emerson, a 
surgeon in the United States army, was taken by his master from 
Missouri to Rock Island, Illinois, where slavery was prohibited 
by statute. Thence he was taken, in 1836, to Fort Snelling, in 
the territory of upper Louisiana. This post was situated on the 
west bank of the Mississippi, north of latitude 36° 30', and north 
of Missouri, and hence within the territory in which slavery had 
been forbidden by the Missouri Compromise. In 1836, with the 
consent of their master, Dred and Harriet were married. In 1838, 
Dr. Emerson returned with his slaves to Missouri. In 1847, Dred 
brought suit in the Missouri circuit court to recover his freedom, 
having discovered that according to previous decisions of Missouri 
courts, residence in free territory conferred freedom. Judgment 
was rendered in his favor, but was reversed by the Missouri su- 
preme court. Before the commencement of the present suit, Dred 
and his wife and two children were sold to Sandford, a citizen of 
New York. Scott having brought suit in trespass for assault 
and battery against Sandford in the Federal Circuit Court of Mis- 
souri, Sandford pleaded to the jurisdiction of the court that this 
could not be a suit between citizens of different States, because 



473 CASES ON CONSTITUTIONAL LAW. 

Scott was not a citizen of Missouri, but "a. negro of pure African 
descent; his ancestors were of pure African blood and were brought 
into this country and sold as negro slaves." To this Scott de- 
murred and the demurrer was sustained. The defendant then 
pleaded in bar to the action that the plaintiff was his negro slave, 
and that he had only gently laid hands on him to restrain him, 
as he had a right to do. The judge instructed the jury that, "upon 
the facts in this case, the law is with the defendant." The 
plaintiff excepted to this instruction, and upon his exceptions the 
case was taken to the United States Supreme Court. There the 
case was twice argued, — first at December term, 1855, and again 
■at December term, 1856; judgment was deferred until March 6, 
1857, in order, says Alexander Johnston, "to avoid any increase of 
the excitement already attending the presidential election."] 

Me. Chief Justice Taxey delivered the opinion of the court. 

There are two leading questions presented by the record: 

1. Had the Circuit Court of the United States jurisdiction to 
hear and determine the case between these parties? And 

2. If it had jurisdiction, is the judgment it has given erroneous 
or not? 

The plaintiff in error, who was also the plaintiff in the court 
below, was, with his wife and children, held as slaves by the de- 
fendant, in the State of Missouri; and he brought this action in 
the Circuit Court of the United States for that district, to assert 
the title of himself and his family to freedom. 

The declaration is in the form usually adopted in that State 
to try questions of this description, and contains the averment 
necessary to give the court jurisdiction; that he and the defendant 
are citizens of different States; that is, that he is a citizen of 
Missouri, and the defendant a citizen of New York. 

The defendant pleaded in abatement to the jurisdiction of the 
court, that the plaintiff was not a citizen of the State of Missouri, 
as alleged in his declaration, being a negro of African descent, 
whose ancestors were of pure African blood, and who were brought 
into this country and sold as slaves. 

To this plea the plaintiff demuiTed, and the defendant joined in 
demurrer. The court overruled the plea, and gave judgment thai 
the defendant should answer over. And he thereupon put in 
sundry pleas in bar, upon which issues were joined; and at the trial 
the verdict and judgment were in his favor. Whereupon the 
plaintiff brought this writ of error. 



SCOTT V. SANDFORD. 473 

Before we speak of the i^leas in bar, it will be proper to dispose 
of the questions which have arisen on the plea in abatement. 

That plea denies the right of the plaintiff to sue in a court of 
the United States, for the reasons therein stated. ... It is 
suggested, however, that this plea is not before us. . . . We 
think they [the plea and the judgment of the court upon it] are 
before us . . . and it becomes, therefore, our duty to decide 
whether the facts stated in the plea are or are not sufficient to 
show that the plaintiff is not entitled to sue as a citizen in a court 
of the United States. . . . 

The question is simply this: Can a negro, whose ancestors were 
imported into this country, and sold as slaves, become a member 
of the political community formed and brought into existence by 
the Constitution of the United States, and as such become entitled 
to all the rights, privileges and immunities, guarantied by that 
instrument to the citizen? One of which rights is the privilege of 
suing in a court of the United States in the cases specified in the 
Constitution. . . . And this being the only matter in dispute 
on the pleadings, this court must be understood as speaking in 
this opinion of that class only, that is, of those persons who are 
the descendants of Africans who were imported into this country 
and sold as slaves. . , . 

The words "people of the United States" and "citizens" are 
synonymous terms, and mean the same thing. They both describe 
the political body who, according to our republican institutions, 
form the sovereignty, and who hold the power and conduct the 
Government through their representatives. They are what we 
familiarly call the "sovereign people," and every citizen is one 
of this people, and a constituent member of this sovereignty. The 
question before us is, whether the class of persons described in 
the plea of abatement compose a portion of this people, and are 
constituent members of this sovereignty? We think they are not, 
and that they are not included, and were not intended to be in- 
cluded, under the word "citizens" in the Constitution, and can 
therefore claim none of the rights and privileges which that instru- 
ment provides for and secures to citizens of the United States. 
On the contrary they were at that time considered as a subordinate 
and inferior class of beings, who had been subjugated by the domi- 
nant race, and whether emancipated or not, yet remained subject 
to their authority, and had no rights or privileges but such as those 
who held the power and the Government might choose to grant 
them. ... 



474 CASES ON CONSTITUTIONAL LAW. 

In discussing this question, we must not confound the rights of 
citizenship which a State may confer within its own limits, and 
the rights of citizenship as a member of the Union. It does not 
by any means follow, because he has all the rights and privileges 
of a citizen of a State, that he must be a citizen of the United 
States. He may have all the rights and privileges of the citizen 
of a State, and yet not be entitled to the rights and privileges of 
a citizen in any other State. For, previous to the adoption of the 
Constitution of the United States, every State had the undoubted 
right to confer on whomsoever it pleased the character of citizen, 
and to endow him with all its rights. But this character of course 
was confined to the boundaries of the State, and gave him no rights 
or privileges in other States beyond those secured to him by the 
laws of nations and the comity of States. Nor have the several 
States surrendered the power of conferring these rights and privi- 
leges by adopting the Constitution <oi the United States. Each 
State miay still confer them upon an alien, or any one it thinks 
proper, or upon any class or description of persons; yet he would 
not be a citizen in the sense in which that word is used in the 
Constitution of the United States, nor entitled to sue as such in 
one of its courts, nor to the privileges and immunities of a citizen 
in the other States. The rights which he would acquire would be 
restricted to the State which gave them,. The Constitution has 
conferred on Congress the right to establish an uniform rule of 
naturalization, and this right is evidently exclusive, and has al- 
ways been held by this court to be so. Consequently, no State, 
since the adoption of the Constitution, can, by naturalizing an 
alien, invest him with the rights and privileges secured to a citizen 
of a State under the Federal Government, although, so far as the 
State alone was concerned, he would undoubtedly be entitled to 
the rights of a citizen, and clothed with all the rights and im- 
munities which the Constitution and laws of the State attached to 
that character. 

It is very clear, therefore, that no State can, by any act or law of 
its own, passed since the adoption of the Constitution, introduce 
a new member into the political community created by the Consti- 
tution of the United States. It cannot make him a member of 
this community by making him a member of its own. And for 
the same reason it cannot introduce any person, or description of 
persons, who were not intended to be embraced in this new political 
family, which the Constitution brought into existence, but were 
intended to be excluded from it. 



SCOTT V. SANDFORD. 475 

The question then arises, whether the provisions of the Constitu- 
tion, in relation to the personal rights and privileges to which the 
citizen of a State should be entitled, embraced the negro African 
race, at that time in this country, or who might afterward be im- 
ported, who had then or should afterwards be made free in any 
State; and to put it in the power of a single State to make him a 
citizen of the United States, and endow him with the full rights 
of citizenship in every other State without their consent? Does 
the Constitution of the United States act upon him whenever he 
shall be made free under the la.ws of a State, and raised then to 
the rank of a citizen, and immediaicly clothe him with all the privi- 
leges of a citizen in every other State, and in its own courts? 

The court think the affirmative of these propositions cannot be 
nraintained. And if it cannot, the plaintiff in error could not be 
a citizen of the State of Missouri, within the meaning of the Con- 
stitution of the United States, and, consequently, was not entitled 
to sue in its courts. 

It is true, every person, and ever}' class and description of per- 
sons, who were at the time of the adoption of the Constitution 
recognized as citizens in the several States, became also citizens 
of this new political body; but none other; it was formed by them, 
and for them and their posterity, but for no one else. And the 
personal rights and privileges guarantied to citizens of this new 
sovereignty were intended to embrace those only who were then 
members of the several State communities, or who should after- 
wards, by birthright or otherwise, become members, according to 
the provisions of the Constitution and the principles on which 
it was founded. It was the union of those who were at that time 
members of distinct and separate political communities into one 
political family, wdiose power, for certain specified purposes, was 
to extend over the whole territory of the United States. And it 
gave to each citizen rights and privileges outside of his State 
which he did not before possess, and placed him in every other 
State upon a perfect equality with its own citizens as to rights of 
person and rights of property; it made him a citizen of the United 
States. 

It becomes necessary, therefore, to determine who were citizens 
of the several States when the Constitution was adopted. And in 
order to do this, we must recur to the Governments and institutions 
of the thirteen colonies, when they separated from Great Britain 
and formed new sovereignties, and took their places in the family 
of independent nations. We must inquire who, at that time, were 



476 CASES ON CONSTITUTIONAL LAW. 

recognized as the people or citizens of a State, whose rights and 
liberties had been outraged b}^ the English Government; and who 
declared their independence, and assumed the powers of Govern- 
ment to defend their rights by force of arms. 

In the opinion of the court, the legislation and histories of the 
times, and the language used in the Declaration of Independence, 
show, that neither the class of persons who had been imported 
as slaves, nor their descendants, whether they had become free or 
not, were then acknowledged as a part of the people, nor intended 
to be included in the general words used in that memorable instru- 
ment. . . . 

They had for more than a century before been regarded as be- 
ings of an inferior order, and altogether unfit to associate with 
the white race, either in social or political relations; and so far 
inferior, that they had no rights which the white man was bound 
to respect; and that the negro might justly and lawfully be re- 
duced to slavery for his benefit. . . . 

The legislation of the different colonies furnishes positive and 
indisputable proof of this fact. . . . The language of the 
Declaration of Independence is equally conclusive. . . . This 
state of public opinion had undergone no change when the Con- 
stitution was adopted, as is equally evident from its provisions and 
language. . . . But there are two clauses in the Constitution 
which point directly and specifically to the negro race as a separate 
class of persons, and show clearly that they were not regarded as a 
portion of the people or citizens of the Government then formed. 

One of these clauses reserves to each of the thirteen States the 
right to import slaves until the year 1808, if it thinks proper. 
. . . And by the other provision the States pledge themselves to 
each other to maintain the right of property of the master, by de- 
livering up to him any slave who may have escaped from his ser- 
vice, and be found within their respective territories. . . . 

The legislation of the States therefore shows, in a manner not 
to be mistaken, the inferior and subject condition of that race at 
the time the Constitution was adopted, and long afterwards, 
throughout the thirteen States by which that instrument was 
framed; and it is hardly consistent with the respect due to these 
States, to suppose that they regarded at that time, as fellow-citizens 
and members of the sovereignty, a class of beings whom they had 
thus stigmatized; whom, as we are bound, out of respect to the 
State sovereignties, to assume they had deemed it just and necessary 
thus to stigmatize, and upon whom they had impressed such deep 



SCOTT V. SANDFCRD. 477 

and enduring marks of inferiority and degradation; or, that when 
they met in convention to fomi the Constitution, they looked upon 
them as a portion of their constituents, or designed to include them 
in the provisions so carefully inserted for the security and protec- 
tion of the liberties and rights of their citizens. It cannot be sup- 
posed that they intended to secure to them rights, and privileges, 
and rank, in the new political body throughout the Union, which 
every one of them denied within the limits of its own dominion. 
More especially, it cannot be believed that the large slave-holding 
States regarded them as included in the word citizens, or would 
have consented to a Constitution which might compel them to re- 
ceive them in that character from another State. For if they were 
so received, and entitled to the privileges and immunities of citi- 
zens, it would exempt them from the operation of the special laws 
and from the police regulations which they considered to be neces- 
sary for their own safety. It would give to persons of the negro 
race, who were recognized as citizens in any one State of the Union, 
the right to enter every other State whenever they pleased, singly 
or in companies, without pass or passport, and without obstruction, 
to sojourn there as long as they pleased, to go where they pleased 
at every hour of the day or night without molestation, unless they 
committed some violation of law for which a white man would be 
punished; and it would give them the full liberty of speech in 
public and in private upon all subjects upon which its own citizens 
might speak; to hold public meetings upon political affairs, and 
to keep and carry arms wherever they went. And all this would 
be done in the face of the subject race of the same color, both free 
and slaves, and inevitably producing discontent and insubordina- 
tion among them, and endangering the peace and safety of the 
State. . . . 

To all this mass of proof we have still to add, that Congress has 
repeatedly legislated upon the same construction of the Constitu- 
tion that we have given. Three laws, two of which were paissed 
almost immediately after the Government went into operation, will 
be abundantly sufficient to show this. . . . 

The first of these acts is the naturalization law, which was passed 
at the second session of the first Congress, March 26, 1790, and 
confines the right of becoming citizens "to aliens being free white 
persons." . . . 

Another of the early laws of which we have spoken, is the first 
mihtia law, which was passed in 1792, at the first session of the 



478 CASES ON CONSTITUTIONAL LAW. 

second Congress. ... It directs that every "free able-bodied 
white male citizen" shall be enrolled in the militia. . . . 

The third aet to which we have alluded is still more decisive; it 
was passed as late as 1813 (2 Stat., 809), and it provides: "That 
from and after the termination of the war in which the United 
States are now engaged with Great Britain, it shall not be lawful to 
employ, on board of any public or private vessels of the United 
States, any person or persons except citizens of the United States, 
or persons of color, natives of the United States." . . . 

The conduct of the Executive Department of the Government 
has been in perfect harmony upon this subject with this course of 
legislation. The question was brought ofhcially before the late 
William Wirt, when he was the Attorney General of the United 
States, in 1821, and he decided that the words "citizens of the 
United States" were used in the acts of Congress in the same sense 
as in the Constitution; and that free persons of color were not 
citizens, within the meaning of the Constitution and laws; and 
this opinion has been confirmed by that of the late Attorney Gen- 
eral, Caleb Gushing, in a recent case, and acted upon by the Secre- 
tary of State, who refused to grant passports to them as "citizens 
of the United States." 

But it is said that a person may be a citizen, and entitled to that 
character, although he does not possess all the rights which may be- 
long to other citizens; as, for example, the right to vote, or to hold 
particular offices; and that yet, when he goes into another State, 
he is entitled to be recognized there as a citizen, although the State 
may measure his rights by the rights which it allows to persons 
of a like character or class resident in the State, and refuse to 
him the full rights of citizenship. 

This argument overlooks the language of the provision in the 
Constitution of which we are speaking. 

Undoubtedly, a person may be a citizen, that is, a member of the 
community who form the sovereignty, although he exercises no 
share of the political power, and is incapacitated from holding par- 
ticoilar offices. Women and minors, who form a part of the polit- 
ical family, cannot vote; and when a property qualification is re- 
quired to vote or hold a particular office, those Avho have not the 
necessary qualification cannot vote or hold office, yet they are 
citizens. 

So, too, a person may be entitled to vote by the law of the State, 
who is not a citizen even of the State itself. And in some of the 
States of the Union foreigners not naturalized are allowed to vote. 



SCOTT V. SANDFORD. 479 

And the State may give the right to free negroes and mnlattoes, 
hut that does not make them citizens of the State, and still less 
of the United States. And the provision in the Constitution giv- 
ing privileges and immunities in other States, does not apply to 
them. 

Neither does it apply to a person who, heing the citizen of a 
State, migrates to another State. For then he hecomes subject to 
the laws of the State in which he lives, and he is no longer a 
citizen of the State from which he removed. And the State in 
which he resides may then, unquestionably, determine his status 
or condition, and place him among the class of persons who are 
not recognized as citizens, but belong to an inferior and subject 
race; and may deny him the privileges and immunities enjoyed by 
its citizens. 

But so far as mere rights of person are concerned, the provision 
in question is confined to citizens of a State who are temporarily 
in another State without taking up their residence there. It gives 
them no political rights in the State as to voting or holding office, 
or in any other respect. For a citizen of one State has no right 
to participate in the government of another. But if he ranks as 
a citizen in the State to which he belongs, within the meaning of 
the Constitution of the United States, then, whenever he goes 
into another State, the Constitution clothes him, as to the rights 
of person, with all the privileges and immunities which belong to 
citizens of the State. And if persons of the African race are citi- 
zens of a State, and of the United States, they would be entitled 
to all of these privileges and immunities in every State, and the 
State could not restrict them; for they would hold these privileges 
and iimnunities under the paramount authority of the Federal 
Government, and its courts would be bound to maintain and en- 
force them, the Constitution and laws of the State to the contraiy 
notwithstanding. And if the states could limit or restrict them, 
or place the party in an inferior grade, this clause of the Constitu- 
tion would be unmeaning, and could have no operation; and would 
give no rights to the citizen when in another State. He would 
have none but what the State itself chose to allow him. This is 
evidently not the construction or meaning of the clause in ques- 
tion. It guaranties rights to the citizen, and the State cannot 
withhold them. And these rights are of a character and would 
lead to consequences which make it absolutely certain that the 
African race were not included imder the name of citizens of a 
State, and were not in the contemplation of the framers of the 



480 CASES ON CONSTITUTIONAL LAW. 

Constitution when these privileges and immunities were provided 
for the protection of the citizens in other States. . . . 

What the construction [of the Constitution] was at that time 
[when it was framed], we think can hardly admit of doubt. We have 
the language of the Declaration of Independence and of the Articles 
of Confederation, in addition to the plain words of the Constitution 
itself; we have the legislation of the different States, before, about 
'the time, and since, the Constitution was adopted; we have the 
legislation of Congress, from the time of its adoption to a recent 
period; and we have the constant and uniform action of the Execu- 
tive Department, all concurring together, and leading to the same 
result. And if anything in relation to the construction of the 
Constitution can be regarded as settled, it is that which we now 
give to the word "citizen'^ and the word "people." 

And upon a full and careful consideration of the subject, the 
court is of opinion, that, upon the facts stated in. the plea in abate- 
ment, Dred Scott was not a citizen of Missouri within the meaning 
of the Constitution of the United States, and not entitled as such 
to sue in its courts; and, consequently, that the Circuit Court had 
no jurisdiction of the case, and that the judgment on the plea in 
abatement is erroneous. . . . [Here follows a discussion of the 
judicial authority of the court to examine any question in the case 
other than that of the jurisdiction of the Circuit Court. The court 
determines that it has the requisite authority]. 

We proceed, therefore, to inquire whether the facts relied on by 
the plaintiff entitled him to his freedom. . . . 

In considering this part of the controversy, two questions arise : 
1. Was he, together with his family, free in Missouri by reason 
of the stay in the territory of the United States hereinbefore men- 
tioned? And 2. If they were not, is Scott himself free by rea- 
son of his removal to Rock Island, in the State of Illinois, as stated 
in the above admissions? 

We proceed to examine the first question. 

The act of Congress, upon which the plaintiff relies, declares that 
slavery and involuntary servitude, except as a punishment for 
crime, shall be forever prohibited in all that part of the territory 
ceded by France, under the name of Louisiana, which lies north 
of thirty-six degrees thirty minutes north latitude, and not in- 
cluded within the limits of Missouri. And the difficulty which 
meets us at the threshold of this part of the inquiry' is, whether 
Congress was authorized to pass this law, under any of the powers 
granted to it by the Constitution; for if the authority is not given 



SCOTT V. SANDFORD. 481 

by that instrument, it is the duty of this court to declare it void 
and inoperative, and incapable of conferring freedom upon any one 
who is held as a slave under the laws of any one of the States. 

The counsel for the plaintiff has laid much stress upon that ar- 
ticle in the Constitution which confers on Congress the power "to 
dispose of and make all needful rules and regulations respecting the 
territory or other property belonging to the United States;" but, in 
the judgment of the court, that provision has no bearing on the 
present controversy, and the power there given, whatever it may be, 
is confined, and was intended to be confined, to the territory which 
at that time belonged to, or was claimed by, the United States, and 
was within their boundaries as eettled by the treaty with Great 
Britain, and can have no influence upon a territory afterwards ac- 
quired from a foreign Government. It was a special provision for 
a known and particular territory', and to meet a present emergency, 
and nothing more. ... It was intended for a specific purpose, 
to provide for the things we have mentioned. It was to transfer 
to the new Government the property then held in common by the 
States, and to give to that Government power to apply it to the 
objects for which it had been destined by mutual agreement among 
the States before their league was dissolved. It applied only to 
the property which the States held in common at that time, and 
has no reference whatever to any territory or other property which 
the new sovereignty might afterwards itself acquire. . . . 

At the time when the territory in question was obtained by ces- 
sion from France, it contained no population fit to be associated 
together and admitted as a State; and it therefore was absolutely 
necessary to hold possession of it, as a Territory belonging to the 
United States, until it was settled and inhabited by a civilized 
community capable of self-government, land in a condition to be 
admitted on equal terms with the other States as a member of the 
Union. But, as we have before said, it was acquired by the General 
Government, as the representative and trustee of the people of the 
United States, and it must therefore be held in that character for 
their common and equal benefit; for it was the people of the sev- 
eral States, acting through their agent and representative, the Fed- 
eral Government, who in fact acquired the Territory in question, 
and the Government holds it for their common use until it shall 
be associated with the other States as a member of the Union. 

But until that time arrives, it is undoubtedly necessary that 
some Goverimient should be established, in order to organize soci- 
ety, and to protect the inhabitants in their persons and property; 
31 



482 CASES ON CONSTITUTIONAL LAW. 

and as the people of the United States could act in this matter only 
through the GoTernment which represented them, and through 
which they spoke and acted when the Territory was obtained, it 
was not only within the scope of its powers, hut it was its duty to 
pass such laws and estahhsh such a Government as would enable 
those by whose authority they acted to reap the advantages antici- 
pated from its acquisition, and to gather there a population which 
would enable it to assume the position to which it was destined 
among the States of the Union. . . . But the power of Con- 
gress over the person or property of a citizen can never be a mere 
discretionary power under our Constitution and form of Govern- 
ment. The powers of the Government and the rights and privi- 
leges of the citizen are regulated and plainly defined by the Con- 
stitution itself. . . . Thus the rights of property are united 
with the rights of person, and placed on the same ground by the 
fifth amendment to the Constitution, which provides that no person 
shall be deprived of life, liberty, and property, without due process 
of law. And an act of CongTess which deprives a citizen of the 
United States of his liberty or property, merely because he came 
himself or brought his property into a particular Territory of the 
United States, and who had committed no offense against the laws, 
could hardly be dignified with the name of due process of law. 

It seems, however, to be supposed, that there is a difference be- 
tween property in a slave and other property, and that different 
rules may be applied to it in expounding the Constitution of the 
United States. And the laws and usages of nations, and the writ- 
ings of eminent jurists upon the relation of master and slave and 
their mutual rights and duties, and the powers which Governments 
may exercise over it, have been dwelt upon in the argument. 

But in considering the C[uestion before us, it must be borne in 
mind that there is no law of nations standing between the people 
of the United States and their Government, and interfering with 
their relation to each other. The powers of the Government, and 
the rights of the citizen under it, are positive and practical regu- 
lations plainly written down. The people of the United States 
have delegated to it certain enumerated powers, and forbidden it 
to exercise others. It has no power over the person or property 
of a citizen but what the citizens of the United States have granted. 
And no laws or usages of other nations, or reasoning of statesmen 
or jurists upon the relations of master and slave, can enlarge the 
powers of the Government, or take from the citizens the rights 



SCOTT V. SANDFORD. 483 

they have reserved. And if the Constitution recognizes the right 
of property of the master in a slave, and mal\;es no distinction be- 
tween that description of property and other property owned by 
a citizen, no tribunal, acting under the authority of the United 
States, whether it be legislative, executive, or judicial, has a right 
to draw such a distinction, or deny to it the benefit of the pro- 
visions and guarantees which have been provided for the protec- 
tion of private property against the encroachments of the Govern- 
ment. 

Now, as we have already said in an earlier part of this opinion, 
upon a different point, the right of property in a slave is distinctly 
and expressly affirmed in the Constitution. The right to traffic 
in it, like an ordinary article of merchandise and property, was 
guaranteed to the citizens of the United States, in every State that 
might desire it, for twenty years. And the Government in express 
terms is pledged to protect it in all future time, if the slave escapes 
from his owner. This is done in plain words — too plain to be 
misunderstood. And no word can be found in the Constitution 
which gives Congress a greater power over slave property, or which 
entitles property of that kind to less protection than property of 
any other description. The only power conferred is the power 
coupled with the duty of guarding and protecting the owner in his 
rights. 

Upon these considerations, it is the opinion of the court that the 
act of Congress which prohibited a citizen from holding or owning 
property of this kind in the territory of the United States north 
of the line therein mentioned, is not warranted by the Constitution, 
and is therefore void; and that neither Dred Scott himself, nor any 
of his family, were made free by being carried into this territory; 
even if they had been carried there by the owner, with the inten- 
tion of becoming a permanent resident. . . . 

But there is another point in the case which depends upon State 
power and State law. And it is contended, on the part of the 
plaintiff, that he is made free 'by being taken to Eock Island, in 
the State of Illinois, independently of his residence in the temtory 
of the United States; and being so made free, he was not again re- 
duced to a state of slavery by being brought back to Missouri. 

Our notice of this part of the case will be very brief; for the 
principle on which it depends was decided in this court, upon 
much consideration, in the case of Strader et al. v. Graham, re- 
ported in 10th Howard, 82. In that case, the slaves had been 
taken from Kentucky to Ohio, with the consent of the owner, 



484 CASES ON CONSTITUTIONAL LAW. 

and afterwards brought "back to Kentucky. And this conrt held 
that their status or condition, as free or slave, depended upon the 
laws of Kentucky, when they were brought back into that State, 
and not of Ohio; and that this court had no jurisdiction to revise 
the judgment of a State court upon its own laws. . . . 

So in this case. As Scott wa'S a slave when taken into the State 
of Illinois by his owner, and was there held as such, and brought 
back in that character, his status, as free or slave, depended on 
the laws of Missouri, and not of Illinois. 

It has, however, been urged in the argument, that by the laws 
of Missouri he was free on his return, and that this case, therefore, 
cannot be governed by the case of Strader et al. v. Graham, where 
it appeared, by the laws of Kentucky, that the plaintiffs continued 
to be slaves on their return from Ohio. But whatever doubts or 
opinions may, at one time, have been entertained upon this sub- 
ject, we are satisfied, upon a careful examination of all the cases 
decided in the State courts of Missouri referred to, that it is now 
firmly settled by the decisions of the highest court in the State, 
that Scott and his family upon their return were not free, but 
were, by the laws of Missouri, the property of the defendant; and 
that the Circuit Court of the United States had no jurisdiction, 
when, by the laws of the State, the plaintiff was a slave, and not a 
citizen. . . . 

Upon the whole, therefore, it is the judgment of this court, that 
it appears by the record before us, that the plaintiff in error is 
not a citizen of Missouri, in the sense in which that word is used 
in the Constitution; and that the Circuit Court of the United 
States, for that reason, had no jurisdiction in the case, and could 
give no judgment in it. Its judgment for the defendant must, 
consequently, be reversed, and a mandate issued, directing the suit 
to be dismissed for want of jurisdiction. 

Me. Justice jSTelson. ... In the view we have taken of 
the case, it will not be necessary to pass upon this question [as to 
whether the plea in abatement is before the court], and we shall 
therefore proceed at once to an examination of the case upon its 
merits. The question upon the merits, in general terms, is, 
whether or not the removal of the plaintiff, who was a slave, with 
his master, from the State of Missouri to the State of Illinois, with 
a view to a temporary residence, and after such residence and re- 
turn to the slave State, such residence in the free State works an 
emancipation. 



SCOTT V. SANDFORD. 485 

As appears from the agreed statement of facts, this question has 
been before the highest court of the State of Missouri, and a judg- 
ment rendered that this residence in the free State has no such 
effect; but, on the contraiy, that his original condition continued 
unchanged. 

The court below, the Circuit Court of the United States for Mis- 
souri, in which this suit was afterwards brought, followed the deci- 
sion of the State court, and rendered a like judgment against the 
plaintiff. 

The argument against these decisions is, that the laws of Illi- 
nois, forbidding slavery within her territory, had the effect to set 
the slave free while residing in that State, and to impress upon 
him the condition and status of a freeman; and that, by force of 
these laws, this status and condition accomipanied him on his re- 
turn to the slave State, and of consequ.ence he could not be there 
held as a slave. 

This question has been examined in the courts of several of the 
slave-holding States, and different opinions expressed and conclu- 
sions arrived at. . , . Our opinion is, that the question is one 
which belongs to each State to decide for itself, either by its Legis- 
lature or courts of justice; and hence, in respect to the case before 
us, to the State of Missouri — a question exclusively of Missouri 
law, and which, when detennined by that State, it is the duty of 
the Federal courts to follow it. In other words, except in cases 
where the power is restrained by the Constitution of the United 
States, the law of the State is supreme over the subject of slavery 
within its jurisdiction. 

As a practical illustration of the principle, we may refer to the 
legislation of the free States in abolishing slavery, and prohibit- 
ing its introduction into their territories. Confessedly, except as 
restrained by the Federal Constitution, they exercised, and right- 
fully, complete and absolute power over the subject. Upon what 
principle, then, can it be denied to the State of Missouri? The 
power flows from the sovereign character of the States of this 
Union; sovereign, not merely as respects the Federal Govermnent 
— except as they have consented to its limitation — ^but sovereign as 
respects each other. Whether, therefore, the State of Missouri will 
recognize or give effect to the laws of Illinois within her territories 
on the subject of slavery, is a question for her to determine. Nor 
is there any constitutional power in this Government that can 
rightfully control her. 

Every State or nation possesses an exclusive sovereignty and 



486 CASES ON CONSTITUTIONAL LAW. 

jurisdiction, within her own territory; and her laws affect and hind 
all property and persons residing within, it. It may regulate the 
manner and circumstances under which property is held, and. the 
condition, capacity, and state of all persons therein; and, also, the 
remedy and modes of administering justice. And it is equally 
true, that no State or nation can affect or hind property out of its 
territor}^, or persons not residing within it. ISTo State, therefore, 
can enact laws to operate heyond its own dominions, and, if it at- 
tempts to do so, it may he la^-fully refused ohedience. Such laws 
can have no inherent authority extra-territorially. This is the nec- 
essary result of distinct and separate sovereignties. . . . 

These principles fully estahlish, that it belongs to the sovereign 
State of llissouri to determine hy her laws the question of slavery 
within her jurisdiction, subject only to such limitations as may he 
found in the Federal Constitution; and, further, that the laws of 
other States of the Confederacy, whether enacted by their Legisla- 
tures or expounded by their courts, can have no operation within 
her territory, or affect rights growing out of her own laws on the 
subject. This is the necessary result of the independent and sov- 
ereign character of the State. The principle is not peculiar to the 
State of Missouri, but is equally applicable to each State belong- 
ing to the Confederacy. The laws of each have no. extra-territorial 
operation within the jurisdiction of another, except such as may be 
voluntarily conceded by her laws or courts of justice. To the 
extent of such concession upon the rule of comity of nations, the 
foreign law may operate, as it then becomes a part of the municipal 
law of the State. When determined that the foreign law shall 
have effect, the municipal law of the State retires, and gives place 
to the foreign law. . . . 

It has been supposed, in the argument on the part of the 
plaintiff, that the eighth section of the act of Congress passed 
March 6, 1830 (3 St. at Large, p. 544), which prohibited slavery 
north of thirty-six degrees thirty minutes, within which the 
plaintiff and his wife temporarily resided at Fort Snelling, pos- 
sessed some superior virtue and effect, extra-territorially, and with- 
in the State of IVIissouri, beyond that of the laws of Illinois, or 
those of Ohio in the case of Strader et al. v. Grraham. A similar 
ground was taken and urged upon the court in the ease just men- 
tioned, under the ordinance of 1787, which was enacted during 
the time of the Confederation, and re-enacted by Congress after 
the adoption of the Constitution, with some amendments adapting 
it to the new Government. (1 St. at Large, p. 50). 



SCOTT V. SANDFORD. 487 

In answer to this ground, the Chief Justice, in delivering the 
-opinion of the court, observed: "The argument assumes that the 
six articles which that ordinance declares to be perpetual, are still 
in force in the States since formed within the territory, and ad- 
mitted into the Union. If this proposition could be maintained, 
it would not alter the question; for the regulations of Congress, 
under the old Confederation or the present Constitution, for the 
government of a particular Territory, could ha\e no force beyond 
its limits. It certainly could not restrict the power of the States, 
within their respective territories, nor in any manner interfere 
with their laws and institutions, nor give this court control over 
them. 

''The ordinance in question," he observes, "if still in force, could 
have no more operation than the laws of Ohio in the State of Ken- 
tucky, and could not influence the decision upon the rights of the 
master or the slaves in that State." 

This view, thus authoritatively declared, furnishes a conclusive 
answer to the distinction attempted to be set up between the extra- 
territorial effect of a State law and the act of Congress in question. 

It must be admitted that Congress possesses no power to regu- 
late or abolish slavery within the States; and that, if this act had 
attempted any such legislation, it would have been a nullity. And 
yet the argument here, if there be any force in it, leads to the 
result, that effect may be given to such legislation; for it is only 
by giving the act of Congress operation within the State of Mis- 
souri, that it can have any effect upon the question between the 
parties. Having no such effect directly, it will be difficult to 
maintain, upon any consistent reasoning, that it can be made to 
operate indirectly upon the subject. . . . 

It is perhaps not unfit to notice, in this connection, that many 
of the most eminent statesmen and jurists of the country enter- 
tain the opinion that this provision of the act of Congress, even 
within the territory to which it relates, was not authorized by any 
power under the Constitution. . . . 

Upon the whole, it must be admitted that the current of author- 
ity, both in England and in this country, is in accordance with the 
law as declared by the courts of Mssouri in the case before us, 
and we think the court below was not only right, but bound to 
follow it. . , . 

Our conclusion is, that the judgment of the court below should 
be affirmed. 

[Justices AYayne and Daniel concurred entirely in the opinion 



488 CASES ON CONSTITUTIONAL LAW. 

of the Cliief Justice. Justice Grier concurred with. Justice Xel- 
•son "on the questions discussed by him." He did not mention the 
plea in abatement. Justice Campbell did not consider the plea 
in abatement;, but concurred with the Chief Justice as to the other 
points involved. Justice Catron concurred with the Chief Justice 
as to the Missouri Compromise and with Justice Xelson as to the 
effect of residence in Illinois. He held that the plea in abatement 
was not before the court. Of the two dissenting justices^ McLean 
denied and Curtis admitted that the plea in abatement was open. 

Me. Justice McLeax and Me. Justice Cuetis dissented. 

Justice McLeax held, 1, As to the locality of slavery, that 
it was a mere municipal regulation, founded upon and limited to 
the range of territorial laws. 2. Sfevery is emphatically a State 
institution. In the formation of the Federal Constitution, care 
was taken to confer no power on the Federal Government to inter- 
fere with this institution in the States. In the provision respeet- 
ing the slave trade, in fixing the ratio of representation, and 
providing for the reclamation of fugitives from labor, slaves were 
referred to as persons, and in no other respect are they considered 
in the Constitution. 3. As to the power of Congress to establish 
Territorial Governments, and to prohibit the introduction of slav- 
ery therein. Congress has power to dispose of and make all needful 
rules and regulations respecting the territory and other property 
belonging to the United States. If Congress should deem slaves 
or free colored persons injurious to the population of a free Terri- 
tory, on any ground connected with the public interest, they have 
the power to prohibit them from becoming settlers in it. 4. As 
to the effect of taking slaves into a State or Territory, and so hold- 
ing them, where slavery is prohibited, how can the slave be coerced 
to serve in a State or Territor}-, not only without the authority of 
law, but against its express provisions? Where no slavery exists, 
the presumption, without regard to color, is in favor of freedom. 
In 1824, in the case of Winny v. "\Miitesides (1 Missouri Eep., 4?3), 
the ^Missouri Supreme Court held that if a slave be detained in Illi- 
nois until he be entitled to freedom, the right of the owner does 
not revive when he finds the negro in a slave State. 5. As to 
whether the status of slavery attached to the plaintiff and wife, 
on their return to ^lissouri, this doctrine is not asserted in the 
late opinion of the Supreme Court of Missouri, and up to 1852 
the contrar}'' doctrine was uniformly maintained by that court. 



SCOTT V. SANDFORD. 489' 

Justice Curtis held that the plea in abatement was before the 
court. To determine whether any person of African descent whose 
ancestors were sold as slaves in the United States can be a citizen 
of the United States, it may be inquired who were citizens of the 
United States at the time of the adoption of the Constitution. 
Citizens at that time can have been no other than the citizens of 
the United States under the Confederation. These included free 
persons descended from xVfricans held in slavery. At the time 
of the ratification of the Articles of Confederation, all free native- 
born inhabitants of the States of New Hampshire, Massachusetts, 
New York, New Jersey and North Carolina., though descended 
from African slaves, were not only citizens of those States, but such 
of them as had the other necessary qualifications possessed the 
franchise of electors, on equal terms with other citizens. He con- 
cluded therefore, 1. That the free-born citizens of each State are 
citizens of the United States. 2. That as free colored persons 
born within some of the States are citizens of those States, such 
persons are also citizens of the United States. 3. That every such 
citizen, residing in any State, has the right to sue and is liable to 
be sued in the Federal courts, as a citizen of that State in which he 
resides. 4. That as the plea to the jurisdiction in this case shows 
no facts, except that the plaintiff was of African descent, and his 
ancestors were sold as sl'aves, and as these facts are not inconsistent 
with his citizenship of the United States, and his residence in the 
State of Missouri, the plea to the jurisdiction was bad, and the 
judgment of the Circuit Court overruling it, was correct. As to 
the effect of Scott's residence in the Territory in which slavery 
was prohibited, the judge held that the laws of the United States 
in operation there changed his status to that of a free man. Fur- 
thermore the consent of the master that his slave, residing in a 
country which does not tolerate slavery, may enter into a lawful 
contract of marriage, attended with the civil rights and duties 
which belong to that condition, is an effectual act of emancipation. 
The Act of Congress of March 6, 1820, was a regulation respecting 
the territory of the United States, and was a constitutional and 
valid law.] 

Note. — The court consisted at this time of nine judges, seven 
of whom concurred in the judgment rendered. Of these seven, 
only three, viz., Taney, Wayne and Daniel, held that the plea in 
abatement was open, and hence that the question of the status of 
free negroes was before the court. Justice Catron held that the 



490 CASES ON CONSTITUTIONAL LAW. 

plea was not open. Justices ISTelson and Campbell took such views 
of the case that they did not pass upon it, and Justice Grier seemed 
to avoid the question. Six memheis of the court, viz., Taney, 
Wayne, Daniel, Grier, Campbell, and Catron, concurred in pro- 
nouncing the Missouri Compromise unconstitutional. Justice 
Nelson did not pass upon it. 

It is important in this case to distinguish the opinion of the 
court from the judgment of the court. What is called in the re- 
port the opinion of the court is in reality only the opinion of the 
Chief Justice, which he delivered before announcing the judg- 
ment of the court. The distinction appears clearly in the opinions 
of Justices Campbell and Catron, who concurred in the judgment 
of the Chief Justice, but erpressly dissented from certain parts 
of his opinion. The opinion of Justice Nelson was the only one 
in which all the justices of the majority concurred. It was orig- 
inally prepared to stand as the opinion of the court. See Thayer's 
Cases, I, 480, note. 

Scott's first case is reported in 15 Mo., 683. 

"Had the supreme court confined its action to a denial of juris- 
diction in this case on the ground taken by the Missouri state su- 
preme court, the decision would probably have been accepted 
generally as law, however harsh, in the case of slaves removed tem- 
porarily from state jurisdiction and then brought back. But, im- 
pelled, as has been charged, by a superserviceable desire to forward 
the interests and designs of slave-holders in the territories, or as 
is much more probable, by the wide sweep taken by counsel on both 
sides in their arguments, the chief justice and the assenting jus- 
tices proceeded to deliver a course of individual lectures on history, 
politics, ethics and international law, the exact connection of which 
with the legal subject matter in hand it was in many cases difficult 
for the justices themselves to make perfectly clear. In these addi- 
tions to the denial of ju.risdiction lay the interest, importance and 
far-reaching consequences of the Dred Scott decision. . . . 
The Dred Scott decision was the last attempt to decide the con- 
test between slavery extension and slavery restriction by form 
of law.'^ Alexander Johnston in Lalor's Cyclopedia, I, 839, 841. 

"It is noticeable that the sting of the decision lay rather in the 
obiter dicta than in the determination of the main question in- 
volved." Bryce, American Commonwealth (3d Ed.), I, 263, note. 

"While Chief Justice Taxet has always in the public estimation 
borne the brunt of this decision, it is nevertheless to be considered 
that of the nine judges of the court six concurred with him in 



SLAUGHTER-HOUSE CASES. 491 

holding that the plaintiff was a slave, and that the Judgment of 
the court should be aifii'med. Of these six (Catron, Daniel, Wayne, 
Campbell, Nelson, and Grier) two — not the two least strong — 
were respectively from the States of New York and Pennsylvania, 
and had both held important judicial positions in those States be- 
fore reaching the bench of the Federal Supreme Court. They 
must all share — and doubtless had none of them any desire to 
avoid it — the responsibility of this judgment of the court. The 
opinion in dissent of Justice Cuetis, ... is profound in its 
examination of the sources of the law upon the subject; luminous 
and learned in its consideration of the political and judicial his- 
tory of the country; and convincing in the conclusions to which 
it arrives. Hardly too much can be said in praise of this masterly 
effort." George W. Biddle in Constitutional History as seen in 
American Law, 180-181. 



SLAUGHTEE-HOUSE CASES. 

16 Wallace, 36. Decided 1873. 

[The facts are sufficiently stated in the opinion of the court.] 

Mr. Justice Miller now, April 14, 1873, delivered the opinion 
of the court. 

These cases are brought here by writs of error to the Supreme 
Court of the State of Louisiana. They arise out of the efforts of 
the butchers of New Orleans to resist the Crescent City Live-Stock 
Landing and Slaughter-House Company in the exercise of certain 
powers conferred by the charter which created it, and which was 
granted by the legislature of that State. . . . 

The records show that the plaintiffs in error relied upon, and as- 
serted throughout the entire course of the litigation in the State 
courts, that the grant of privileges in the charter of defendant, 
which they were contesting, was a violation of the most important 
provisions of the thirteenth and fourteenth articles of amendment 
of the Constitution of the United States, The jurisdiction and the 
duty of this court to review the judgment of the State court on 
those questions is clear and imperative. 

The statute thus assailed as unconstitutional was passed March 
8, 1869, and is entitled, "An act to protect the health of the city 



492 CASES ON CONSTITUTIONAL, LAW. 

of jSI'ew Orleans, to locate the stock-landings and slaugliter-lioiises, 
and to incorporate tlie Crescent City Live-Stock Landing and 
Slangliter-House Company." 

The first section forbids the landing or slaughtering of animals 
whose flesh is intended for food, within the city of New Orleans 
and other parishes and honndaries named and defined, or the keep- 
ing or establishing any slaughter-houses or abattoirs within those 
limits, except by the corporation thereby created, which is also lim- 
ited to certain places afterwards mentioned. Suitable penalties 
are enacted for violations of this prohibition. 

The second section designates the corporators, gives the name 
to the corporation, and confers on it the usual corporate powers. 

The third and fourth sections authorize the company to estab- 
lish and erect within certain territorial limits, therein defined, one 
or more stock-yards, stock-landings, and slaughter-houses, and im- 
pose upon it the duty of erecting, on or before the first day of 
June, 1869, one grand slaughter-house of sufficient capacity for 
slaughtering five hundred animals per day. 

It declares that the company, after it shall have prepared all the 
necessary buildings, yards, and other conveniences for that pur- 
pose, shall have the sole and exclusive privilege of conducting and 
carrying on the live-stock landing and slaughter-house business 
within the limits and privilege granted 'by the act, and that all such 
animals shall be landed at the stock-landings and slaughtered at 
the slaughter-houses of the company, and nowhere else. Penalties 
are enacted for infractions of this provision, and prices fixed for 
the maximum charges of the company for each steamboat and for 
each animal landed. 

Section five orders the closing up of all other stock-landings and 
slaughter-houses after the first day of June, in the parishes of Or- 
leans, Jefferson, and St. Bernard, and makes it the duty of the 
company to permit any person to slaughter animals in their 
slaughter-houses under a heavy penalty for each refusal. Another 
section fixes a limit to the charges to be made by the company for 
each animal so slaughtered in their building, and another provides 
for an inspection of all animals intended to be so slaughtered, by 
an officer appointed by the governor of the State for that piH-pose, 

These are the principal features of the statute, and are all that 
have any bearing upon the questions to be decided by us. 

This statute is denounced not only as creating a monopoly and 
conferring odious and exclusive privileges upon a small number of 



SLAUGHTER-HOUSE CASES. 493 

persons at the expense of the great body of the community of 
New Orleans, but it is asserted that it deprives a large and meritor- 
ious class of citizens — the whole of the butchers of the city — of the 
right to exercise their trade, the business to which they have been 
trained and on which they depend for the support of themselves 
and their families; and that the unrestricted exercise of the busi- 
ness of butchering is necessary to the daily subsistence of the popu- 
lation of the city. 

But a critical examination of the act hardly justifies these asser- 
tions. 

It is true that it grants, for a period of twenty-five years, exclu- 
sive privileges. And whether those privileges are at the expense 
of the community in the sense of a curtailment of any of their 
fundamental rights, or even in the sense of doing them an injury, 
is a question open to considerations to be hereafter stated. But 
it is not true that it deprives the butchers of the right to exercise 
their trade, or imposes upon them any restriction incompatible with 
its successful pursuit, or furnishing the people of the city with the 
necessary daily supply of animal food. 

The act divides itself into two main grants of privilege, — the 
one in reference to stock-landings and stock-yards, and the other 
to slaughter-houses. That the landing of live-stock in large droves, 
from steamboats on the bank of the river, and from railroad trains, 
should, for the safety and comfort of the people and the care of 
the animals, be limited to proper places, and those not numerous, 
it needs no argument to prove. Nor can it be injurious to the 
general community that while the duty of making ample prepara- 
tion for this is imposed upon a few men, or a corporation, they 
should, to enable them to do it successfully, have the exclusive 
right of providing such landing-places, and receiving a fair com- 
pensation for the service. 

It is, however, the slaughter-house privilege, which is mainly 
relied on to justify the^ charges of gross injustice to the public, and 
invasion of private right. 

It is not, and cannot be successfully controverted, that it is 
both the right and the duty of the legislative body — the supreme 
power of the State or municipality — to prescribe and determine the 
localities where the business of slaughtering for a great city may be 
conducted. To do this effectively it is indispensable that all per- 
sons who slaughter animals for food shall do it in those places and 
nowhere else. 

The statute under consideration defines these localities and for- 



4.94 CASES ON CONSTITUTIONAL LAW, 

bids slauglitering in any otlier. It does not, as has been asserted, 
preyent the butcher from doing his own slaughtering. On the 
contrary, the Slaughter-Honse Company is required, under a heavy 
penalt}^, to permit any person Avho wishes to do so, to slaughter in 
their houses; and they are bound to make ample provision for the 
convenience of all the slaughtering for the entire city. The 
butcher then is still permitted to slaughter, to prepare, and to sell 
his own meats; but he is required to slaughter at a specified place 
and to pay a reasonable compensation for the use of the accommo- 
dations furnished him at that place. 

The wisdom of the monopoly granted by the legislature may be 
open to question, but it is difficult to see a justification for the 
assertion that the butchers are deprived of the right to labor in 
their occupation, or the people of their daily service in preparing 
food, or how this statute, with the duties and guards imposed upon 
the companjr, can be said to destroy the business of the butcher, or 
seriously interfere with its pursuit. 

The power here exercised by the legislature of Louisiana is, in 
its essential nature, one which has been, up to the present period 
in the constitutional history of this country, always conceded to 
belong to the States, however it may now be questioned in some 
of its details. 

"Unwholesome trades, slaughter-houses, operations oifensive to 
the senses, the deposit of powder, the application of steam-power to 
propel cars, the building with combustible materials, and the burial 
of the dead, may all," says Chancellor Kent,^ "be interdicted by 
law, in the midst of dense masses of population, on the general and 
rational principle, that every person ought so to use his property as 
not to injure his neighbors; and that private interests must be made 
subservient to the general interests of the communit3^" This is 
called the police power; and it is declared by Chief Justice Shaw,^ 
that it is much easier to perceive and realize the existence and 
sources of it than to mark its boundaries, or j)rescribe limits to its 
exercise. 

This power is, and must be from its very nature, incapable of any 
very exact definition or limitation. Upon it depends the security 
of social order, the life and health of the citizen, the comfort of 
an existence in a thickly populated community, the enjoyment of 
private and social life, and the beneficial use of property. "It ex- 

1 2 Commentaries, 340. 

2 Commonwealtli v. Alger, 7 Cushing, 84. 



SLAUGHTER-HOUSE CASES. 495 

tends/' says another eminent judge/ "to the protection of the lives, 
limbs, health, comfort, and quiet of all persons, and the protection 
of all property within the State; . . . and persons and prop- 
erty are subjected to all kinds of restraints and burdens in order 
to secure the general comfort, health, and prosperity of the State. 
Of the perfect right of the legislature to do this no question ever 
was, or, upon acknowledged general principles, ever can be made, 
so far as natural persons are concerned." 

The regulation of the place and m'anner of conducting the 
slaughtering of animals, and the business of butchering within a 
city, and the inspection of the animals to be killed for meat, and 
of the meat afterwards, are among the most necessary and frequent 
exercises of this power. It is not, therefore, needed that we should 
seek for a comprehensive definition, but rather look for the proper 
source of its exercise. . . . [Here follows an extract from 
Gibbons v. Ogden, 9 Wheaton, 203]. 

The exclusive authority of State legislation over this subject is 
strikingly illustrated in the case of the City of New York v. Miln.* 
In that case the defendant was prosecuted for failing to comply 
with a statute of New York which required of every master of a 
vessel arriving from a foreign port, in that of New York City, to 
report the names of all his passengers, with certain particulars of 
their age, occupation, last place of settlement, and place of their 
birth. It was argued that this act was an invasion of the exclusive 
right of Congress to regulate commerce. And it cannot be de- 
nied, that such a statute operated at least indirectly upon the com- 
mercial intercourse between citizens of the United States and of 
foreign countries. But notwithstanding this it was held to be an 
exercise of the police power properly within the control of the 
State, and unaffected by the clause of the Constitution which con- 
ferred on Congress the right to regulate commerce. 

To the same purpose are the recent cases of The License Tax,^ 
and United States v. DeWitt.'' In the latter case an act of Con- 
gress which undertook as a part of the internal revenue laws to 
make it a misdemeanor to mix for sale naphtha and illuminating 
oils, or to sell oil of petroleum inflamm-able at less than a pre- 
scribed temperature, was held to be void, because as a police regu- 
lation the power to make such a law belonged to the States, and 
did not belong to Congress. 

3 Thorpe v. Rutland and Burlington Railroad Co.. 27 Vermont, 149. 

4 11 Peters, 102. 
•'"' 5 Wallace, 471. 
6 9 Id., 41. 



496 CASES ON CONSTITUTIONAL LAW. 

It cannot be denied that the statute under consideration is aptly 
framed to reniOYe from the more densely populated part of the 
city the noxious slaughter-houses, and large and offensive collec- 
tions of animals necessarily incident to the slaughtering business 
of a large city, and to locate them where the convenience, health, 
and comfort of the people require they shall be located. And it 
must be conceded that the means adopted by the act for this pur- 
pose are appropriate, are stringent, and effectual. But it is said 
that in creating a corporation for this purpose, and conferring upon 
it exclusive privileges — privileges which it is said constitute a mo- 
nopoly — the legislature has exceeded its power. If this statute 
had imposed on the city of Xew Orleans precisely the same duties, 
accompanied by the same privileges, which it has on the corpora- 
tion which it created, it is believed that no question would have 
been raised as to its constitutionality. In that case the effect on 
the butchers in pursuit of their occupation and on the public would 
have been the same as it is now. Why cannot the legislature con- 
fer the same powers on another corporation, created for a lawful 
and useful public object, that it can on the municipal corporation 
already existing? That wherever a legislature has the right to 
accomplish a certain result, and that result is best attained by 
means of a corporation, it has the right to create such a corpora- 
tion, and to endow it with the powers necessar}^ to effect the de- 
sired and lawful purpose, seems hardly to admit of debate. The 
proposition is ably discussed and attirmed in the case of McCulloch 
V. The State of Maryland,'^ in relation to the power of Congress 
to organize the Bank of the United States to aid in the fiscal operar 
tions of the government. 

It can readily be seen that the interested vigilance of the corpo- 
ration created by the Louisiana legislature will be more efficient 
in enforcing the limitation prescribed for the stock-landing and 
slaughtering business for the good of the city than the ordinary 
efforts of the officers of the law. 

Unless, therefore, it can be maintained that the exclusive privi- 
lege granted by this charter to the corporation is beyond the power 
of the legislature of Louisiana, there can be no just exception to 
the validity of the statute. And in this respect we are not able to 
see that these privileges are especially odious or objectionable. 
The duty imposed as a consideration for the privilege is well de- 
fined, and its enforcement well guarded. The prices or charges 

T 4 Wheat, 316. 



SLAUGHTER-HOUSE CASES. 497 

to be made by the company are limited by the statute, and we are 
not advised that they are on the whole exorbitant or unjust. 

The proiDosition is, therefore, reduced to these terms: Can any 
exclusive privileges be granted to any of its citizens, or to a corpo- 
ration, by the legislature of a State? 

The eminent and learned counsel who has twice argued the nega- 
tive of this question, has displayed a research into the history of 
monopolies in England and the European continent, only equalled 
by the eloquence with which they are denounced. 

But it is to be observed, that all such references are to monopo- 
lies established by the monarch in derogation of the rights of his 
subjects, or arise out of transactions in which the people were un- 
represented, and their interests uncared for. The great Case of 
Monopolies, reported by Coke, and so fully stated in the brief, 
was undoubtedly a contest of the commons against the monarch. 
The decision is based upon the ground that it was against com- 
mon law, and the argument was aimed at the unlawful assump- 
tion of power by the crown; for who ever doubted the authority of 
Parliament to change or modify the common law? The discussion 
in the House of Commons cited from Macaulay clearly establishes 
that the contest was between the Crown, and the people represented 
in Parliament. 

But we think it may be safely affirmed, that the Parliament of 
Great Britain, representing the people in their legislative functions, 
and the legislative bodies of this country, have from time immem- 
orial to the present day continued to gTant to persons and corpora- 
tions exclusive privileges, — privileges denied to other citizens, — 
privileges which come within any just definition of the word mo- 
nopoly, as much as those now under consideration; and that the 
power to do this has never been questioned or denied. Nor can 
it be tnithfully denied, that some of the most useful and bene- 
ficial enterprises set on foot for the general good, have been made 
successful by means of these exclusive rights, and could only have 
been conducted to success in that way. 

It may, therefore, be considered as established, that the authority 
of the legislature of Louisiana to pass the present statute is ample, 
imless some restraint in the exercise of that power be found in the 
constitution of that State or in the amendments to the Constitution 
of the United States, adopted since the date of the decisions we 
have already cited. 

If any such restraint is su]>]DOsed to exist in the constitution of 
the State, the Supreme Court of Louisiana having necessarily 
32 



498 CASES ON CONSTITUTIONAL LAW. 

passed on that question, it ^vonld not be open to review in this 
court. 

The plaintiffs in error accepting this issue, allege that the statute 
is a violation of the Constitution of the United States in these sev- 
eral particulars: — 

That it creates an invountar}- servitude forbidden by the thir- 
teenth article of amendment; 

That it abridges the privileges and immunities of citizens of the 
United States; 

That it denies to the plaintiffs the equal protection of the laws; 
and, 

That it deprives them of their property without due process of 
law; contrary to the provisions of the first section of the fourteenth 
article of amendment. 

This court i-s thus called upon for the first time to give construc- 
tion to these articles. 

We do not conceal from ourselves the great responsibihty which 
this duty devolves upon us. Xo questions so far-reaching and per- 
vading in their consequences, so profoundly interesting to the peo- 
ple of this country, and so important in their bearing upon the rela- 
tions of the United States, and of the several States to each other 
and to the citizens of the States and of the United States, have 
been before this court during the official life of any of its present 
members. We have given every opportunity for a full hearing at the 
bar; we have discussed it freely and compared views among our- 
selves; we have taken ample time for careful deliberation, and we 
now propose to announce the judgments which we have formed in 
the construction of those articles, so far as we have found them 
necessary to the decision of the cases before us, and beyond that 
we have neither the inclination nor the right to go. 

Twelve articles of amendment were added to the Federal Consti- 
tution soon after the original organization of the government under 
it in 1789. Of these all but the last were adopted so soon after- 
wards as to justify the statement that they were practically con- 
temporaneous with the adoption of the original; and the twelfth, 
adopted in eighteen hundred and three, was so nearly so as to have 
become, like all the others, historical and of another age. But 
within the last eight years three other articles of amendment of 
vast importance have been added by the voice of the people to that 
now venerable instrument. 

The most cursorv o-lance at these articles discloses a unity of 



SLAUGHTER-HOUSE CASES. 499 

purpose, when taken in connection with the history of the times, 
which cannot fail to have an important bearing on any question of 
doubt concerning their true meaning. Not can such doubts, when 
any reasonably exist, be safely and rationally solved without a refer- 
ence to that history; for in it is found the occasion and the necessity 
for recurring again to the great source of power in this country, the 
people of the States, for additional guarantees of human rights; 
additional powers to the Federal government; additional restraints 
upon those of the States. Fortunately that history is fresh within 
the memory of us all, and its leading features, as they bear upon 
the matter before us, free fro.m doubt. 
■ The institution of African slavery, as it existed in about half 
the States of the Union, and the contests pervading the public 
mind for many years, between those who desired its curtailment 
and ultimate extinction and those who desired additional safeguards 
for its security and perpetuation, culminated in the effort, on the 
part of most of the States in which slavery existed, to separate 
from the Federal government, and to resist its authority. This con- 
stituted the war of the rebellion, and whatever auxiliary causes 
may have contributed to bring about this war, undoubtedly the 
overshadowing and efficient cause was African slavery. 

In that struggle slavery, as a legalized social relation, perished. 
It perished as a necessity of the bitterness and force of the con- 
flict. When the armies of freedom found themselves upon the soil 
of slavery they could do nothing less than free the poor victims 
whose enforced servitude was the foundation of the quarrel. And 
when hard pressed in the contest these men (for they proved them- 
selves men in that terrible crisis) offered their services and were 
accepted by thousands to aid in suppressing the unlawful rebellion, 
slavery was at an end wherever the Federal government succeeded 
in that purpose. The proclamation of President Lincoln expressed 
an accomplished fact as to a large portion of the insurrectionary 
districts, when he declared slavery abolished in them all. But 
the war being over, those who had succeeded in re-establishing the 
authority of the Federal government were not content to permit 
this great act of emancipation to rest on the actual results of the 
contest or the proclamation of the Executive, both of which might 
have been questioned in after times, and they determined to place 
this main and most valuable result in the Constitution of the re- 
stored Union as one of its fundamental articles. Hence the thir- 
teenth article of amendment' of that instrument. Its two short 



500 CASES ON CONSTITUTIONAL LAW. 

sections seem hardly to admit of construction^ so vigorous is their 
expression and so appropriate to the purpose we have indicated. 

"1. Xeither slaverj^ nor involuntary servitude, except as a pun- 
ishment for crime, whereof the parts' shall have heen duly con- 
victed, shall exist within the United States or any place subject to 
their jurisdiction. 

"2. Congress shall have power to enforce this article by appro- 
priate legislation.'' 

To withdraw the mind from the contemplation of this grand 
yet simple declaration of the personal freedom of all the human 
race within the jurisdiction of this government — a declaration de- 
signed to establish the freedom of four million of slaves — and with 
a microscopic search endeavor to find in it a reference to servitudes, 
which may have been attached to property in certain localities, re- 
quires an effort, to say the least of it. 

That a personal servitude was meant is proved by the use of the 
word "involuntary," which can only apply to human beings. The 
exception of servitude as a punishment for crime gives an idea of 
the class of servitude that is meant. The word "servitude" is of 
larger meaning than slavery, as the latter is popularly understood 
in this country, and the obvious purpose was to forbid all shades 
and conditions of African slavery. It was very well understood 
that in the form of appreticeship for long terms, as it had been 
practiced in the T\"est India Islands, on the abolition of slaver}- by 
the English government, or by reducing the slaves to the condition 
of serfs attached to the plantation, the purpose of the article might 
have been evaded, if only the word "slavery" had been used. The 
ease of the apprentice slave, held under a law of Maryland, liber- 
ated by Chief Justice Chase, on a writ of habeas corpus under this 
article, illustrates this course of observation.^ And it is all that 
we deem necessary' to say on the application of that article to the 
statute of Louisiana, now under consideration. 

The process of restoring to their proper relations with the Fed- 
eral government and with the other States those which had sided 
with the rebellion, undertaken under the proclamation of President 
Johnson in 1865, and before the assembling of Congress, devel- 
oped the fact that, notwithstanding the formal recognition by those 
States of the abohtion of slavery, the condition of the slave race 
would, without further protection of the Federal government, be 
almost as bad as it was before. Among the first acts of legislation 
adopted by several of the States in the legislative bodies whidi 

1 Matter of Turner, 1 Abbott United States Reports, 84. 



SLAUGHTER-HOUSE CASES. 501 

claimed to be in their normal relations with the Federal govern- 
ment, were laws which imposed upon the colored race onerous 
disabilities and burdens, and curtailed their rights in the pursuit 
of life, liberty, and property to such an extent that their freedom 
was of little value, while they had lost the protection which they 
had received from their former owners from motives both of inter- 
est and humanity. 

They were in some States forbidden to appear in the towns in any 
other character than menial servants. They were required to re- 
side on and cultivate the soil without the right to purchase or 
own it. They were excluded from many occupations of gain, and 
were not pemiitted to give testimony in the courts in any ca,se 
where a white man was a party. It w^as said that their lives were 
at the mercy of bad men, either because the laws for their pro- 
tection were insufficient or were not enforced. 

These circumstances, whatever of falsehood or misconception 
may have been mingled with their presentation, forced upon the 
statesmen who had conducted the Federal government in safety 
through the crisis of the rebellion, and who supposed that by the 
thirteenth article of amendment they had secured the result of 
their labors, the conviction that something more was necessary in 
the way of constitutional protection to the unfortunate race who 
had suffered so much. They accordingly passed through Congress 
the proposition for the fourteenth amendment, and they declined 
to treat as restored to their full participation in the government of 
the Union the States wdiich had been in insurrection, until they 
ratified that article by a formal vote of their legislative bodies. 

Before we proceed to examine more critically the provisions of 
this amendment, on which the plaintiffs in error rely, let us com- 
plete and dismiss the history of the recent amendments, as that 
histor)^ relates to the general purpose which pervades them all. 
A few years' experience satisfied the thoughtful men who had been 
the authors of the other two amendments that, notwithstanding 
the restraints of those articles on the States, and the laws passed 
under the additional powers granted to Congress, these were inade- 
quate for the protection of life, liberty, and property, without 
which freedom to the slave was no boon. They were in all those 
States denied the right of suffrage. The laws were administered^ 
by the white man alone. It was urged that a race of men dis- 
tinctively marked as was the negi'O, living in the midst of another 
and dominant race, could never be fully secured in their person 
and their property without the right of suffrage. 



k 



503 CASES ON CONSTITUTIONAL LAW. 

Hence the fifteenth amendment^ which declares that "the right 
of a citizen of the United States to vote shall not be denied or 
abridged by any State on account of race, color, or previous condi- 
tion of servitude." The negro having, by the fourteenth amend- 
ment, been declared to be a citizen of the United States, is thus 
made a voter in every State of the Union. 

"We repeat, then, in the light of this recapitulation of events, 
almost too recent to be called history, but "vvhich are familiar to us 
• all; and on the most casual examination of the language of these 
amendments, no one can fail to be impressed with the one per- 
vading purpose found in them all, lying at the foundation of each, 
and without which none of them would have been even suggested; 
we mean the freedom of the slave race, the security and firm estab- 
lishment of that freedom, and the protection of the newl3"-made 
freeman and citizen from the oppressions of those who had for- 
merly exercised unlimited dominion over him.It is true that only 
the fifteenth amendment, in terms, mentions the negro by speak- 
ing of his color and his slavery. But it is just as true that each 
of the other articles was addressed to the grievances of that race, 
and designed to remedy them as the fifteenth. 

We do not say that no one else but the negro can share in this 
protection. Both the language and spirit of these articles are to 
have their fair and Just weight in any question of construction. 
Undoubtedly while negro slavery alone was in the mind of the 
Congress which proposed the thirteenth article, it forbids any other 
kind of slavery, now or hereafter. If Mexican peonage or the 
Chinese cooly labor system shall develop slavery of the Mexican 
or Chinese race within our territory, this amendment may safely be 
trusted to make it void. And so if other rights are assailed by the 
States which properly and necessarily fall within the protection of 
these articles, that protection will apply, though the party inter- 
ested may not be of African descent. But what we do say, and 
what we wish to be understood is, that in any fair and just con- 
struction of any section or phrase of these amendments, it is 
necessary to look to the purpose which we have said was the per- 
vading spirit of them all, the evil which they were designed to 
remed}', and the process of continued addition to the Constitution, 
until that purpose was supposed to be accomplished, as far as 
constitutional law can accomplish it. 

The first section of the fourteenth article, to which our atten- 
tion is more specially invited, opens with a definition of citizenship 
— not only citizenship of the United States, but citizenship of the 



SLAUGHTER-HOUSE CASES. 503 

States. No such iefinition was i^reviousl}^ found in the Constitu- 
tion, nor had any attempt been made to define it by act of Congress. 
It had been the occasion of much discussion in the courts, by the 
executive departments, and in the public journals. It had been 
said by eminent judges that no man was a citizen of the United 
States except as he was a citizen of one of the States 
composing the Union, Those, therefore, who had been born 
and resided always in the District of Columbia or in the Territories, 
though within the United States, were not citizens. Whether this 
proposition was sound or not had never been judicially decided. 
But it had been held by this court, in the celebrated Dred Scott 
case, only a few years before the outbreak ox the civil war, that 
a man of African descent, whether a slave or not, was not and 
could not be a citizen of a State or of the United States. This 
decision, while it met the condemnation of some of the ablest 
statesmen and constitutional lawyers of the country, had never 
been overruled; and if it was to be accepted as a constitutional 
limitation of the right of citizenship, then all the negro race who 
had recently been made freemen, were still, not only not citizens, 
but were incapable of becoming so by anything short of an amend- 
ment to the Constitution. 

To remove this difficulty primarily, and to establish a clear and 
comprehensive definition of citizenship which should declare what 
should constitute citizenship of the United States, and also citizen- 
ship of a State, the first clause of the first section was framed. 

"All persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States and of 
the State wherein they reside." 

The first observation we have to make on this clause is, that it 
puts at rest both the questions which we stated to have been the 
subject of difl^erences of opinion. It declares that persons may be 
citizens of the United States without regard to their citizenship of 
a particular State, and it overturns the Dred Scott decision by 
making all persons born within the United States and subject to its 
jurisdiction citizens of the United States. That its main purpose 
was to establish the citizenship of the negro can admit of no doubt. 
The phrase, "subject to its jurisdiction" was intended to exclude 
from its operation children of ministers, consuls, and citizens or 
subjects of foreign States born within the United States. 

The next observation is more important in view of the arguments 
of counsel in the present case. It is, that the distinction between 
citizenship of the United States and citizenship of a State is clearly 



504 CASES ON CONSTITUTIONAL LAW. 

recognized and established. Xot only may a man be a citizen of 
the United States without being a citizen of a State, but an im- 
portant element is necessary to convert the former into the latter. 
He must reside within the State to make him a citizen of it, but it is 
only necessary that he should be born or naturalized in the United 
States to be a citizen of the Union. 

It is cjuite clear, then, that there is a citizenship of the United 
States, and a citizenship of a State, which are distinct from each 
other, and which depend upon different characteristics or circum- 
stances in the individual. 

We think this distinction and its explicit recognition in this 
amendment of great weight in this argument, because the next 
l^aragraph of this same section, which is the one mainly relied on 
by the plaintiffs in error, speaks only of privileges and immunities 
of citizens of the United States, and does not speak of those of 
citizens of the several States. The argument, however, in favor of 
the plaintiff's rests wholly on the assumption that the citizenship 
is the same, and the jmvileges and immunities guaranteed by the 
clause are the same. 

"' The language is, "Xo State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the United 
States.^' It is a little remarkable, if this clause was intended as a 
protection to the citizen of a State against the legislative power of 
his own State, that the word citizen of the State should be left out 
when it is so carefully used, and used in contradistinction to citizens 
of the United States, in the very sentence which precedes it. It is 
too clear for argument that the change in phraseology was adopted 
understandingiy and with a purpose. 

Of the privileges and immunities of the citizen of the United 
States, and of the privileges and immunities of the citizen of the 
State, and what they respectively are, we will presently consider; 
but we wish to state here that it is only the former which are 
placed by this clause under the protection of the Federal Constitu- 
tion, and that the latter, whatever they may be, are not intended 
to have any additional protection by this paragraph of the amend- 
ment. 

If, then, there is a difference between the privileges and immuni- 
ties belonging to a citizen of the United States as such, and those 
belonging to the citizen of the State as such, the latter must rest 
for their security and protection where they have heretofore rested; 
for they are not embraced by this paragraph of the amendment. 

The first occurrence of the words "privileges and immunities" 



SLAUGHTER-HOUSE CASES. 505 

in oiir constitutional history, is to be found in the fourth of the 
articles of the old Confederation. 

It declares "that the better to secure and perpetuate mutual 
friendship and intercourse among the people of the different States 
in this Union, the free inhabitants of each of these States, paupers, 
vagabonds, and fugitives from justice excepted, shall be entitled to 
all the privileges and immunities of free citizens in the several 
States; and the people of each State shall have free ingress and 
regress to and from any other State, and shall enjoy therein all the 
privileges of trade and commerce, subject to the same duties, im- 
positions, and restrictions as the inhabitants thereof respectively.'* 

In the Constitution of the United States, which superseded the 
Articles of Confederation, the corresponding provision is found in 
section two of the fourth article, in the following words: ''The 
citizens of each State shall be entitled to all the privileges and im- 
munities of citizens of the several States." 

There can be but little question that the purpose of both these 
provisions is the same, and that the privileges and immunities in- 
tended are the same in each. In the article of the Confederation 
we have some of these specifically mentioned, and enough perhaps 
to give some general idea of the class of civil rights meant by the 
phrase. 

Fortunately we are not without judicial construction of this 
clause of the Constitution, The first and the leading case on the 
subject is that of Corfield v. Coryell, decided by Mr. Justice Wash- 
ington in the Circuit Court for the District of Pennsylvania in 
1823.1 

"The inquiry," he says, "is, what are the privileges and immuni- 
ties of citizens of the several States? We feel no hesitation in 
confining these expressions to those privileges and immunities 
which are fundamental; which belong of right to the citizens of all 
free governments, and which have at all times been enjoyed by 
citizens of the several States which compose this Union, from the 
time of their becoming free, independent, and sovereign. What 
these fundamental principles are, it would be more tedious than 
difficult to enumerate. They may all, however, be comprehended' 
under the following general heads: protection by the government, 
with the right to acquire and possess property of every kind, and 
to pursue and obtain happiness and safety, subject, nevertheless, 
to such restraints as the government may prescribe for the gen- 
eral good of the whole." [The court then cites Ward v. The State 

1 4 Washington's Circuit Court, 371. 



506 CASES ON CONSTITUTIONAL LAW. 

of Marj'land, 12 Wallace, 430, and Paul v. Virginia, 8 Wallace, 
180]. 

The constitutional provision there alluded to did not create those 
rights, which it called privileges and immunities of citizens of the 
States. It threw around them in that clause no security for the 
citizen of the State in which they were claimed or exercised. Nor 
did it profess to control the power of the State governments over 
the rights of its own citizens. 

Its sole, purpose was to declare to the several States, that what- 
ever those rights, as you grant or establish them to your own citi- 
zens, or as you limit or qualify, or impose restrictions on their 
exercise, the same, neither more nor less, shall he the measure of 
the rights of citizens of other States within your jurisdiction. 

It would be the vainest show of learning to attempt to prove by 
citation of authority, that up to the adoption of the recent amend- 
ments, no claim or pretense was set up that those rights depended 
on the Federal government for their existence or protection, beyond 
the very few express limitations which the Federal Constitution 
imposed upon the States — such, for instance, as the prohibition 
against ex post facto laws, bills of attainder, and laws impairing 
the obligation of contracts. But with the exception of these and 
a few other restrictions, the entire domain of the privileges and 
immunities of citizens of the States, as above defined, lay within 
the constitutional and legislative power of the States, and without 
that of the Federal government. Was it the purpose of the four- 
teenth amendment, by the simple declaration that no State should 
make or enforce any law which shall abridge the privileges and 
immunities of citizens of the United States, to transfer the security 
and protection of all the civil rights which we have mentioned, 
from the States to the Federal government? And where it is de- 
clared that Congress shall have the power to enforce that article, 
was it intended to bring within the power of Congress the entire 
domain of civil rights heretofore belonging exclusively to the 
States? 

All this and more must follow, if the proposition of the plaintiffs 
°in error be sound. For not only are these rights subject to the 
control of Congress whenever in its discretion any of them are 
supposed to be abridged by State legislation, but that body may 
also pass laws in advance, limiting and restricting the exercise of 
legislative power by the States, in their most ordinary and usual 
functions, as in its judgment it may think proper on all such sub- 
jects. And still further, such a construction followed by the 



SLAUGHTER-HOUSE CASES. 507 

reversal of the judgments of the Supreme Court of Louisiana in 
these cases, would constitute this court a perpetual censor upon all 
legislation of the States, on the civil rights of their own citizens, 
with authority to nullify such as it did not approve as consistent 
with those rights, as they existed at the time of the adoption of 
this amendment. The argument, we admit, is not always the most 
conclusive which is drawn from the consequences urged against 
the adoption of a particular construction of an instrument. But 
when, as in the case before us, these consequences are so serious, 
so far-reaching and pervading, so great a departure frOni the 
structure and spirit of our institutions; when the effect is to fetter 
and degrade the State governments by subjecting them to the 
control of Congress, in the exercise of powers heretofore universally 
conceded to them of the most ordinary and fundamental character; 
when in fact it radically changes the whole theory of the relations 
of the State and Federal governments, to each other and of both 
these governments to the people; the argument has a force that is 
irresistible, in the absence of language which expresses such a pur- 
pose too clearly to admit of doubt. 

We are convinced that no such results were intended by the Con- 
gress which proposed these amendments, nor by the legislatures of 
the States which ratified them. 

Having shown that the privileges and immunities relied on in 
the argugient are those which 'belong to citizens of the States as 
such, and that they are left to the State governments for security 
and protection, and not by this article placed under the special 
care of the Federal government, we may hold ourselves excused 
from defining the privileges and immunities of citizens of the 
United States which no State can abridge, until some case involving 
those privileges may make it necessary to do so. 

But lest it should be said that no such privileges and immunities 
are to be found if those we have been considering are excluded, we 
venture to suggest some which owe their existence to the Federal 
government, its National character, its Constitution, or its laws. 

One of these is well described in the case of Crandall v. Nevada.^ 
It is said to be the right of the citizen of this great country, pro- 
tected by implied guarantees of its Constitution, "to come to the 
seat of government to assert any claim he may have upon that gov- 
ernment, to transact any business he may have with it, to seek its 
protection, to share its offices, to engage in administering its 
functions. He has the right of free access to its-seaports, through 

1 6 Wall., 36. 



508 CASES ON CONSTITUTIONAL LA.W. 

which all operations of foreign commerce are conducted, to the 
suh-treasnries, land offices, and courts of justices in the several 
States." And quoting from the language of Chief Justice Taney 
in another case, it is said "that for all the gTeat purposes for which 
the Federal government was established, we are one people, with 
one common country, we are all citizens of the United States;" and 
it is, as such citizens, that their rights are supported in this court 
in Crandall v. Nevada. 

Another privilege of a citizen of the United States is to demand 
the care and protection of the Federal government over his life, 
liberty, and property when on the high seas or within the Juris- 
diction of a foreign government. Of this there can be no doubt, 
nor that the right depends upon his character as a citizen of the 
United States. The right to peaceably assemble and petition for 
redress of grievances, the privilege of the writ of habeas corpus, 
are rights of the citizen guaranteed by the Federal Constitution. 
The right to use the navigable waters of the United States, how- 
ever they may penetrate the territory of the several States, all 
rights secured to our citizens by treaties with foreign nations, are 
dependent upon citizenship of the United States, and not citizen- 
ship of a State. One of these privileges is conferred by the very 
article under consideration. It is that a citizen of the United 
States can, of his own volition, become a citizen of any State of 
the Union by a bona tide residence therein, with the saine rights as 
other citizens of that State. To these may be added the rights 
secured by the thirteenth and fifteenth articles of amendment, 
and by the other clause of the fourteenth, next to be considered. 

But it is useless to pursue this branch of the inquiry, since we 
are of opinion that the rights claimed by these plaintiffs in error, 
if they have any existence, are not privileges and immunities of 
citizens of the United States within the meaning of the clause of 
the fourteenth amendment under consideration. 

"All persons born or naturalized in the United States, and sub- 
ject to the jurisdiction thereof, are citizens of the United States and 
of the State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive any person of life, 
liberty, or property without due process of law, nor deny to any 
person within its jurisdiction the equal protection of its laws." 

The argument has not been much pressed in these eases that 
the defendant's charter deprives the plaintiffs of their propert}^ 
without due process of law, or that it denies to them the equal 



SLAUGHTER-HOUSE CASES. 509 

protection of the law. Tlie first of these paragraphs has been in 
the Constitution since tlie adoption of the fifth amendment, as a 
restraint upon the Federal power. It is also to be found in some 
form of expression in the constitutions of nearly all the States, as a 
restraint upon the power of the States. This law, then, has prac- 
tically been the same as it now is during the existence of the 
government, except so far as the present amendment may place the 
restraining power over the States in this matter in the hands of the 
Federal government. 

We are not without judicial interpretation, therefore, both State 
and Kational, of the meaning of this clause. And it is sufficient to 
say that under no construction of that provision that we have ever 
seen, or any that we deem admissible, can the restraint imposed by 
the State of Louisiana upon the exercise of their trade by the 
butchers of JSTew Orleans be held to be a deprivation of property 
within the meaning of that provision. 

"Nor shall any State deny to any person within its jurisdiction 
the equal protection of the laws." 

In the light of the history of these amendments, and the per- 
vading purpose of them, which we have already discussed, it is not 
difficult to give a meaning to this clause. The existence of laws in 
the States where the newly emancipated negroes resided, which 
discriminated with gross injustice and hardship against them as a 
class, was the evil to be remedied by this clause, and by it such 
laws are forbidden. 

If, however, the States did not conform their laws to its require- 
ments, then by the fifth section of the article of amendment Con- 
gress was authorised to enforce it by suitable legislation. We 
doubt very much whether any action of a State not directed by way 
of discrimination against the negroes as a class, or on account of 
their race, will ever be held to come within the purview of this 
provision. It is so clearly a provision for that race and that emer- 
gency, that a strong case would be necessary for its application to 
any other. But as it is a State that is to be dealt with, and not 
alone the validity of its laws, we may safely leave that matter until 
Congress shall have exercised its power, or some case of State op- 
pression, by denial of equal justice in its courts, shall have claimed 
a decision at our hands. We find no such case in the one before us, 
and do not deem it necessary to go over the argument again, as it 
may have relation to this particular clause of the amendment. 

In the early history of the organization of the government, its 
statesmen seem to have divided on the line which should separate 



510 CASES ON CONSTITUTIONAL LAW. 

the powers of the National government from those of the State 
governments, and though this line has never been very well defined 
in public opinion, such a division has continued from that day to 
this. 

The adoption of the first eleven amendments to the Constitution 
so soon after the original instrument was accepted, shows a prevail- 
ing sense of danger at that time from the Federal power. And it 
cannot be denied that such a Jealousy continued to exist with many 
patriotic men until the breaking out of the late civil war. It was 
then discovered that the true danger to the perpetuity of the IJnion 
was in the capacity of the State organizations to combine and con- 
centrate all the powers of the State, and of contiguous States, for 
a determined resistance to the General Government. 

Unquestionably this has given great force to the argument, and 
added largely to the number, of those who believe in the necessity 
of a strong National government. 

But, however pervading this sentiment, and however it may have 
contributed to the adoption of the amendments we have been con- 
sidering, we do not see in those amendments any purpose to destroy 
the main features of the general system. Under the pressure of 
all the excited feeling growing out of the war, our statesmen have 
still believed that the existence of the States with powers for 
domestic and local government, including the regulation of civil 
rights — the rights of person and of property — was essential to the 
perfect working of our complex form of government, though they 
may have thought proper to impose additional limitations on the 
States, and to confer additional power on that of the Nation. 

But whatever fluctuations may be seen in the history of public 
opinion on this subject during the period of our national existence, 
we think it will be found that this court, so far as its functions 
required, has always held with a steady and even hand the balance 
between State and Federal power, and we trust that such may con- 
tinue to be the history of its relation to that subject so long as it 
shall have duties to perform which demand of it a construction of 
the Constitution, or any of its parts. 

Thejudgmejits of the Supreme Court of Louisiana in these cases 
are affirmed. 

[Chief Justice Chase and Justices Field, Swayne, and 
Bradley dissented. The last three delivered opinions.] 

Note. — In 1887 Mr. Justice Miller made the following statement 
in the nature of a defense of his opinion in this case: 



STRAUDER v. WEST VIRGINIA. 511 

"Although this opinion did not meet the approval of four out 
of nine of the judges on some of the points on which it rested, 
yet public sentiment, as found in the press and in the universal 
acquiescence which it received, accepted it with great unanimity; 
and although there were intimations that in the legislative branches 
of the Government the opinion would be reviewed and criticised 
unfavorably, no such thing has occurred in the fifteen years which 
have elapsed since it was delivered. And while the question of the 
construction of these amendments, and particularly the Fourteenth, 
has often been befo're the Supreme Court of the United States, no 
attempt to override or disregard this elementary decision of the 
effect of the three new constitutional amendments upon the rela- 
tions of the State governments to the Federal government has been 
made; and it nmy be considered now as settled that, with the 
exception of the specific provisions in them for the protection of 
the personal rights of the citizens and people of the United States, 
and the necessary restrictions upon the power of the States for that 
purpose, with the additions to the powers of the General Govern- 
ment to enforce these provisions, no substantial change has been 
made. The necessity of the great powers, conceded by the Consti- 
tution originally to the Federal Government, and the equal 
necessity of the autonomy of the States and their power to regulate 
their domestic affiairs, remain as the great features of our complex 
form of government." Miller, Lectures on the Constitution of the 
United States, 411. 



STEAUDER v. WEST VIRGINIA. 

100 U. S., 303. Decided 1879. 

Error to the Supreme Court of Appeals of the State of West 
Virginia. 

The facts are stated in the opinion of the court. . . . 

Mr. Justice Strong delivered the opinion of the court. 

The plaintiff in error, a colored man, was indicted for murder in 
the Circuit Court of Ohio County, in West Virginia, on the 20th 
of October, 1874, and upon trial was convicted and sentenced. 
The record was then removed to the Supreme Court of the State, 
and there the judgment of the Circuit Court was affirmed. The 
present case is a writ of error to that court, and it is now, in sub- 



512 CASES ON CONSTITUTIONAL LAW. 

stance, averred that at the trial in the State court the defendant 
(now plaintiff in error) was denied rights to which he was entitled 
nnder the Constitution and laws of the United States. 

In the Circuit Court of the State, before the trial of the indict- 
ment was commenced, the defendant presented his petition, verified 
by his oath, prajdng for a removal of the cause into the Circuit 
Court of the United States, assig-ning, as ground for the removal, 
that, "by virtue of the laws of the State of "West Virginia no 
colored man was eligible to be a member of the grand Jury or to 
serve on a petit jury in the State; that white men are so eligible, 
and that by reason of his being a colored man and having been 
a slave, he had reason to believe, and did believe, he could not 
have the full and equal benefit of all laws and proceedings in the 
State of West Virginia for the security of his person as is enjoyed 
by white citizens, and that he had less chance of enforcing in the 
courts of the State his rights on the prosecution, as a citizen of the 
United States, and that the probabilities of a denial of them to 
him as such citizen on every trial which might take place on the 
indictment in the courts of the State were much more enhanced 
than if he was a white man." This petition was denied by the 
State court, and the cause was forced to trial. 

Motions to quash the venire, "because the law under which it 
was issued was unconstitutional, null, and void," and successive 
motions to challenge the array of the panel, for a new trial, and in 
arrest of judgment were then made, all of which were overruled 
and made by exceptions parts cff the record. 

The law of the State to which reference was made in the petition 
for removal and in the several motions was enacted on the 12th 
of March, 1873 (Acts of 1872-73, p. 102), and it is as follows: 
"All white male persons who are twenty-one years of age and who 
are citizens of this State shall be liable to serve as jurors, except 
as herein provided." The persons excepted are State officials. 

In this court, several errors have been assigned, and the con- 
trolling questions underlying them all are, first, whether, by the 
Constitution and laws of the United States, every citizen of the 
United States has a right to a trial of an indictment against him 
by a jury selected and impanelled without discrimination against 
liis race or color, because of race or color; and, second, if he has 
such a right, and is denied its enjo3anent by the State in which 
lie is indicted, may he cause the case to be removed into the Circuit 
Court of the United States? 

It is to be observed that the first of these questions is not whether 



STRAUDER v. WEST VIRGINIA. 513 

a colored man, when an indictment has been preferred against him, 
has a right to a gjiand or a petit jury composed in whole or in part 
of persons of his own race or color, but it is whether, in the com- 
position or selection of jurors by whom he is to be indicted or 
tried, all persons of his race or color may be excluded by law, solely 
because of their race or color, so that by no possibility can any 
colored man sit upon the jury. . . . 

This [the Fourteenth Amendment] is one of a series of constitu- 
tional provisions having a common purpose; namely, securing to 
a race recently emancipated, a race that through many generations 
had been held in slavery, all the civil rights that the superior face 
enjoy. The true spirit and meaning of the amendments, as we 
said in the Slaughter-House Cases (16 Wall., 36), cannot be under- 
stood without keeping in view the history of the times when they 
were adopted, and the general objects they plainly sought to accom- 
plish. At the time when they were incorporated into the Consti- 
tution, it required little knowledge of human nature to anticipate 
that those who had long been regarded as an inferior and subject 
race would, when suddenly raised to the rank of citizenship, be 
looked upon with jealousy and positive dislike, and that State laws 
might be enacted or enforced to perpetuate the distinctions that 
had before existed. Discriminations against them had been habit- 
ual. It was well known that in some States laws making such 
discriminations then existed, and others might well be expected. 
The colored race, as a race, was abject and ignorant, and in that 
condition was unfitted to command the respect of those who had 
superior intelligence. Their training had left them mere children, 
and as such they needed the protection which a wise government 
extends to those who are unable to protect themselves. They 
especially needed protection against unfriendly action in the States 
where they were resident. It was in view of these considerations 
the Fourteenth Amendment was framed and adopted. It was 
designed to assure to the colored race the enjoyment of all the 
civil rights that under the laiw are enjoyed by white persons, and 
to give to that race the protection of the general government, in 
that enjoyment, whenever it should be denied by the States. It 
not only gave citizenship and the privileges of citizenship to persons 
of color, but it denied to any State the power to withhold from them 
the equal protection of the laws, and authorized Congress to en- 
force its provisions by appropriate legislation. . , , [Here 
follow citations from the Slaughter-House Cases, 16 Wallace, 36]. 

If this is the spirit and meaning of the amendment, whether it 
33 



514 CASES ON CONSTITUTIONAL LAW. 

means more or not, it is to be construed liberally, to carry ont the 
purposes of its framers. It ordains that no State shall make or 
enforce any laws which shall abridge the privileges or immunities 
of citizens of the United States (evidently referring to the newly 
made citizens, who, being citizens of the United States, are declared 
to be also citizens of the State in which they reside). It ordains 
that no State shall deprive any person of life, libertj^, or property, 
without due process of law, or deny to any person within its juris- 
diction the equal protection of the laws. What is this but declar- 
ing that the law in the States shall be the same for the black as 
for the white; that all persons, whether colored or white, shall 
stand equal before the laws of the States, and, in regard to the 
colored race, for whose protection the amendment was primarily 
desig-ned, that no discrimination shall be made against them by 
law because of their color? The words of the amendment, it is 
true, are prohibitor}', but they contain a necessar^^ implication of 
a positive immunity, or right, most valuable to the colored race, — 
the right to exemption from unfriendly legislation against them 
distinctively as colored, — exemption from legal discriminations, 
implpng inferiority in civil society, lessening the security of their 
enjoyment of the rights which others enjoy, and discriminations 
which are steps towards reducing them to the condition of a subject 
race. 

That the West Virginia statute respecting juries — ^the statute 
that controlled the selection of the grand and petit jury in the case 
of the plaintiff in error — is such a discrimination ought not to be 
doubted. Xor would it be if the persons excluded by it were white 
men. If in those States where the colored people constitute a 
majority of the entire population a law should be enacted excluding 
all white men from jur}- service, thus denj-ing to them the privilege 
of participating equally with the blacks in the administration of 
justice, we apprehend no one would be heard to claim that it would 
not be a denial to white men of the equal protection of the laws. 
jSTor if a law should be passed excluding all naturalized Celtic 
Irishmen, would there be any doubt of its inconsistency with the 
spirit of the amendment. The very fact that colored people are 
singled out and expressly denied by a statute all right to participate 
in the administration of the law, as jurors, because of their color, 
though they are citizens, and may be in other respects fully quali- 
fied, is practically a brand upon them, affixed by the law, an asser- 
tion of their inferiority, and a stimulant to that race prejudice 



STRAUDER v. WEST VIRGINIA. 515 

which is an impediment to securing to individuals of the race that 
equal justice wliich the law aims to secure to all others. 

The right to a trial by jury is guaranteed to every citizen of 
West Virginia by the Constitution of that State, and the constitu- 
tion of juries is a very essential part of the protection such a mode 
of trial is intended to secure. The very idea of a jury is a body 
of men composed of the peers or equals of the person whose rights 
it is selected or summoned to detennine; that is, of his neighbors, 
fellows, associates, persons having the same legal status in society 
as that which he holds. Blackstone, in his Commentaries, says, 
"The right of trial by jury, or the country, is a trial by the peers 
of every Englishman, and is the grand bulwark of his liberties, and 
is secured to him by the Great Charter." It is also guarded by 
statutory enactments intended to make impossible what ]\ir. Ben- 
tham called "packing juries," It is well known that prejudices 
often exist against particular classes in the community, which sway 
the judgment of jurors, and which, therefore, operate in some cs^es, 
to deny to persons of those classes the full enjoyment of that pro- 
tection which others enjoy. Prejudice in a local community is held 
to be a reason for a change of venue. The framers of the con- 
stitutional amendment must have known full well the existence 
of such prejudice and its likehhood to continue against the manu- 
mitted slaves and their race, and that knowledge was doubtless a 
motive that led to the amendment. By their manumission and 
citizenship the colored race became entitled to the equal protection 
of the laws of the States in which they resided; and the apprehen- 
sion that through prejudice they might be denied that equal pro- 
tection, that is, that there might be discrimination against them, 
was the inducement to bestow upon the national government the 
power to enforce the provision that no State shall deny to them 
the equal protection of the laws. Without the apprehended exist- 
ence of prejudice that portion of the amendment would have lieen 
unnecessary, and it might have been left to the States to extend 
equality of protection. 

In view of these considerations, it is hard to see why the statute 
of West Virginia should not be regarded as discriminating against 
a colored man when he is put upon trial for an alleged criminal 
offence against the State. It is not easy to comprehend how it 
can be said that while every white man is entitled to a trial by a 
jury selected from persons of his OAvn race or color, or, rather, 
selected without discrimination against his color, and a negro is 
not, the latter is equally protected by the law with the former. Is 



516 CASES ON CONSTITUTIONAL LAW. 

not protection of life and liberty against race or color prejudice a 
right, a legal right, under the constitutional amendment? And how 
can it be maintained that compelling a colored man to submit to a 
trial for his life by a jury drawn from a panel from which the State 
has expressly excluded every man of his race, because of color alone, 
however well qualified in other respects, is not a denial to him of 
equal legal protection? 

We do not say that within the limits from which it is not ex- 
cluded by the amendment, a State may not prescribe the qualifi- 
cations of its jurors, and in so doing make discriminations. It may 
confine the selection to males, to freeholders, to citizens, to per- 
sons within certain ages, or to persons having educational qualifi- 
cations. We do not believe the Fourteenth Amendment was ever 
intended to prohibit this. Looking at its history, it is clear it 
had no such purpose. Its aim was against discrimination because 
of race or color. As we have said more than once, its design was 
to protect an emancipated race, and to strike down all possible 
legal discriminations against those who belong to it. To quote 
further from 16 Wall., supra: "In giving construction to any of 
these articles [amendments], it is necessary to keep the main 
j)urpose steadily in view." "It is so clearly a provision for that 
race and that emergency, that a strong case would be necessary for 
its application to any other." We are now called upon to affirm 
or deny that it had other purposes. 

The Fourteenth Amendment makes no attempt to enumerate 
the rights it designed to protect. It speaks in general terms, and 
those are as comprehensive as possible. Its language is prohibitory; 
but every prohibition implies the existence of rights and immuni- 
ties, prominent among which is an immunity from inequality of 
legal protection, either for life, liberty, or property. Any State 
action that denies this immunity to a colored man is in conflict 
with the Constitution. 

Concluding, therefore, that the statute of West Virginia, dis- 
criminating in the selection of jurors, as it does, against negroes 
because of their color, amounts to a denial of the equal protection 
of the laws to a colored man when he is put upon trial for an 
alleged offense against the State, it remains only to be con- 
sidered whether the power of Congress to enforce the provisions of 
the Fourteenth Amendment by appropriate legislation is sufficient 
to justify the enactment of sect. 641 of the Eevised Statutes. 

A right or an immunity, whether created by the Constitution 
or only guaranteed by it, even without any express delegation of 



STRAUDER v. WEST VIRGINIA. 517 

power, may be protected by Congress. Prigg v. The Common- 
wealth of Pennsylvania, 16 Pet., 539. So in United States v. 
Reese (92 U. S., 314) it was said by the Chief Justice of this court: 
"Rights and immunities created by or dependent upon the Consti- 
tution of the United States can be protected by Congress. The 
form and manner of the protection may be such as Congress in 
the legitimate exercise of its legislative discretion shall provide. 
These may be varied to meet the necessities of the particular right 
to be protected." But there is express authority to protect the 
rights and immunities referred to in the Fourteenth Amendment, 
and to enforce observance of them by appropriate congressional 
legislation. And one very efficient and appropriate mode of extend- 
ing such protection and securing to a party the enjoyment of the 
right or immunity, is a law providing for the removal of his case 
from a State court, in which the right is denied by the State 
law, into a Federal court, where it will be uplield. This is an 
ordinary mode of protecting rights and immunities conferred by 
the Federal Constitution and laws. Sec. 641 is such a provision. 
. . . This act puts in the form of a statute what had been 
substantially ordained by the constitutional amendment. It was 
a step toward enforcing the constitutional provisions. Sec. 641 
was an advanced step, fully warranted, we think, by tile fifth 
section of the Fourteenth Amendment. 

We have heretofore considered and affirmed the constitutional 
power of Congress to authorize the removal from State courts into 
the circuit courts of the United States, before trial, of criminal 
prosecutions for alleged offenses against the laws of the State, 
when the defense presents a Federal question, or when a right 
imder the Federal Constitution or laws is involved. Tennessee v. 
Davis, supra, p. 257. It is unnecessary now to repeat what we 
there said. 

That the petition of the plaintiff in error, filed by him in the 
State court before the trial of his case, made a case for removal 
into the Federal Circuit Court, under sect. 641, is very plain, if, 
by the constitutional amendment and sect. 1977 of the Revised 
Statutes, he was entitled to immunity from discrimination against 
him in the selection of jurors, because of their color, as we have 
endeavored to show that he was. It set forth sufficient facts to ex- 
hibit a denial of that immunity, and a denial by the statute law of 
the State. 

There was error, therefore, in proceeding to the trial of the in- 
dictment against him after his petition was filed, as also in over- 



518 CASES ON CONSTITUTIONAL LAW. 

ruling his challenge to the array of the jury, and in refusing to 
quash the panel. 

The judgment of the Supreme Court of West Virginia will be 
reyersed, and the case remitted with instructions to reverse the 
judgment of the Circuit Court of Ohio County; and it is 

So ordered 

[Justice Field and Justice Cliffoed dissented.] 



CIVIL EIGHTS CASES. 
(') UXITED ; STATES t. STAXLEY. TJXITED STATES v. 

(z) EYAX. uxited states v. xichols.C3)i;xited 

STATES V. SIXGLETOX. C^) EOBIXSOX'- and 

WIFE Y. MEMPHIS AXIj^CHAELESTOX 

EAILEOAD COMPAXY. 

109 U. S., 3. Decided 1883. 

These eases are all founded on the first and second sections of 
the Act of Congress, known as the Civil Eights Act, passed March 
1st, 1875, entitled "An Act to protect all citizens in their civil and 
legal rights." 18 Stat., 335. Two of the cases, those against 
Stanley and Xichols, were indictments for denpng to persons of 
color the accommodations and privileges of an inn or hotel; two 
of them, those against Eyan and Singleton, were, one an informa- 
tion, the other an indictment, for denjdng to individuals the privi- 
leges and accommodations of a theater, the information against 
Eyan being for refusing a colored person a seat in the dress circle 
of Maguire's theatre in San Francisco; and the indictment against 
Singleton was for denying to another person, whose color was not 
stated, the full enjoj^ment of the accommodations of the theatre 
known as the Grand Opera House in Xew York, "said denial not 
being made for any reasons by law applicable to citizens of every 
race and color, and regardless of any previous condition of servi- 
tude." The case of Eobinson and wife against the Memphis & 
Charleston E. E. Company was an action brought in the Circuit 
Court of the United States for the Western District of Tennessee, 
to recover the penalty of five hundred dollars given by the second 
section of the act; and the gravamen was the refusal by the con- 
ductor of the railroad company to allow the wife to ride in the 
ladies' car for the reason as stated in one of the counts, that she 
was a person of African descent. The jury rendered a verdict for 



CIVIL RIGHTS CASES. 519 

the defendants in this case, upon tlie merits, under a charge of 
the court to wliich a bill of exceptions was taken by the plaintifEs. 
The case was tried on the assumption by both parties of the validity 
of the act of Congress; and the principal point made by the ex- 
ceptions was, that the judge allowed evidence to go to the jury 
tending to show that the conductor had reason to suspect that the 
plaintiff, the wife, was an improper person, because she was in 
company with a young man whom he supposed to be a white man, 
and on that account inferred that there was some improper con- 
nection between them; and the judge charged the jury, in sub- 
stance, that if this was the conductor's bona fide reason for exclud- 
ing the woman from the car they might take it into consideration 
on the question of the liability of the company. The case was 
brought here by writ of error at the suit of the plaintiffs. The 
cases of Stanley, Nichols, and Singleton, came up on certificates 
of division of opinion between the judges below as to the consti- 
tutionality of the first and second sections of the act referred to; 
and the case of Eyan, on a Avrit of error to the judgment of the 
Circuit Court for the District of California sustaining a demurrer 
to the information. 

The Stanley, Eyan, jSTichols, and Singleton cases were sub- 
mitted together, by the Solicitor-General at the last term of court, 
on the 7th day of November, 1882. There were no appearances 
and no briefs filed for the defendants. 

The Robinson case was submitted on the briefs at the last term, 
on the 29th day of March, 1883. . . . 

Me. Justice Bkadley delivered the opinion of the court. After 
stating the facts in the above language he continued: 

It is obvious that the primary and important question in all the 
cases is the constitutionality of the law: for if the law is unconsti- 
tutional none of the prosecutions can stand. 

The sections of the law referred to provide as follows: 

"Sec. 1. That all persons within the jurisdiction of the United 
States shall be entitled to the full and equal enjoyment of the ac- 
commodations, advantages, facilities, and privileges of inns, public 
conveyances on land or water, theatres, and other places of public 
amusement; subject only to the conditions and limitations estab- 
lished by law, and applicable alike to citizens of every race and 
color, regardless of any previous condition of servitude. 

"Sec. 2. That any person who shall violate the foregoing section 
by denying to any citizen, except for reasons by law applicable to 
citizens of every race and color, and regardless of any previous 



520 CASES ON CONSTITUTIONAL J^AW. 

condition of servitude, the full enjoyment of any of the accom- 
modations, advantages, facilities, or privileges in said section enum- 
erated, or by aiding or inciting such denial, shall for every such 
offense forfeit and pay the sum of five hundred dollars to the per- 
son aggrieved thereby, to be recovered in an action of debt, with 
full costs; and shall also, for every such ofi:ense, be deemed guilty 
of a misdemeanor, and, upon conviction thereof, shall be fined not 
less than five hundred nor more than one thousand dollars, or shall 
be imprisoned not less than thirty days nor more than one year: 
Provided, That all persons may elect to sue for the penalty afore- 
said, or to proceed under their rights at common law and by Stated 
statutes; and having so elected to proceed in the one mode or the 
other, their right to proceed in the other jurisdiction shall be 
barred. But this pro^^sion shall not apply to criminal proceedings, 
either under this Act or the criminal law of any State: And pro- 
vided further, That a judgment for the penalty in favor of the party 
aggrieved, or a judgment upon an indictment, shall be a bar to 
either prosecution respectively/' 

Are these sections constitutional? The first section, which is 
the principal one, cannot be fairly understood without attending 
to the last clause, which qualifies the preceding part. 

The essence of the law is, not to declare broadly that all per- 
sons shall be entitled to the full and equal enjojnnent of the ac- 
commodations, advantages, facilities, and privileges of inns, public 
conveyances, and theatres; but that such enjoyment shall not be 
subject to any conditions applicable only to citizens of a particular 
race or color, or who had been in a previous condition of servitude. 
In other words, it is the purpose of the law to declare that, in the 
enjoyment of the accommodations and privileges of inns, public 
conveyances, theatres, and other places of public amusement, no 
distinction shall be made between citizens of different race or color, 
or between those who have, and those who have not, been slaves. 
Its effect is to declare, that in all inns, public conveyances, and 
places of amusement, colored citizens, whether formerly slaves or 
not, and citizens of other races, shall have the same accommoda- 
tions and privileges in all inns, public conveyances, and places of 
amusement as are enjoj^ed by white citizens; and vice versa. The 
second section makes it a penal offense in any person to deny to 
any citizen of any race or color, regardless of previous servitude, 
any of the accommodations or privileges mentioned in the first 
section. 

Has Congress constitutional power to make such a law? Of 
C'OurseT'no one will contend that the power to pass it was contained 
in the Constitution before the adoption of the last three amend- 



CIVIL RIGHTS CASES. 521 

111611+8. The power is sought, first, in the Fourteenth Amendment, 
and tlie views and arguments of distinguished Senators, advanced 
whilst the law was under consideration, claiming authority to pass 
it hy virtue of that amendment, are the principal arguments ad- 
duced in favor of the power. We have carefully considered those 
arguments, as was due to the eminent ability of those who put 
them forward, and have felt, in all its force, the weight of authority 
which always invests a law that Congress deems itself competent 
to j)ass. But the responsibility of an independent judgment is 
no'W thrown upon this court; and we are bound to exercise it ac- 
cording to the best lights we have. 

The first section of the Fourteenth Amendment (which is the 
one relied on), after declaring who shall be citizens of the United 
States, and of the several States, is prohibitory in its character, 
and prohibitory upon the States. It declares that: 

"No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United States; nor 
shall any State deprive any person of life, liberty, or property with- 
out due process of law; nor deny to any person within its jurisdic- 
tion the equal protection of the laws." 

It is State action of a particular character that is prohibited. 
Individual invasion of individual rights is not the subject-matter 
of the amendment. It has a deeper and broader scope. It nullifies 
and makes void all State legislation, and State action of every 
kind, which impairs the privileges and immunities of citizens of 
the United States, or which injures them in life, liberty or property 
without due process of law, or which denies to any of them the 
equal protection of the laws. It not only does this, but, in order 
that the national will, thus declared, may not be a mere brutum 
fulmen, the last section of the amendment invests Congress with 
power to enforce it by appropriate legislation. To enforce what? 
To enforce the prohibition. To adopt appropriate legislation for 
correcting the effects of such prohibited State laws and State acts, 
and thus to render them effectually null, void, and innocuous. 
This is the legislative power conferred upon Congress, and this is 
the whole of it. It does not invest Congress with power to legislate 
upon subjects which are within the domain of State legislation; 
Init to provide modes of relief against State legislation, or State 
action, of the kind referred to. It does not authorize Congress to 
create a code of municipal law for the regulation of private rights; 
biut to provide modes of redress against the operation of .State laws, 
an5"Tlie action of State officers executive or judicial, when these 
are subversive of the fundamental rights specified in the amend- 



/ 



522 CASES ON CONSTITUTIONAL LAW. 

ment. Positive rights and privileges are undoubtedly secured by 
the Fourteenth Amendment; but they are secured by way of pro- 
hibition against State laws and State proceedings affecting those 
rights and privileges, and by power given to Congress to legislate 
for the purpose of carrying such prohibition into effect: and such 
legislation must necessarily be predicated upon such supposH^T' 
■^fate laws or State proceedings, and be directed to the correction 
of their operation and effect. A quite full discussion of this aspect 
of the amendment may be found in United States v. Cruikshank, 
92 U. S., 542; Virginia v. Eives, 100 U. S., 313; and Ex parte 
Virginia, 100 U. S., 339. 

An apt illustration of this distinction may be found in some of 
the provisions of the original Constitution. Take the subject of 
contracts, for example. The Constitution prohibited the States 
from passing any law impairing the obligation of contracts. This . 
did not give to Congress power to provide laws for the general 
enforcement of contracts; nor power to invest the courts of the 
United States with jurisdiction over contracts, so as to enable 
parties to sue upon them in those courts. It did, however, give the 
power to provide remedies by which tlie impairment; of contracts 
by State legislation might be counteracted and corrected: and 
this power was exercised. The remedy which Congress actually 
provided was that contained in the 25th section of the Judiciary 
Act of 1789, 1 Stat., 85, giving to the Supreme Court of the United 
States jurisdiction by writ of error to review the final decisions of 
State courts whenever they should sustain the validity of a State 
statute or authority alleged to be repugnant to the Constitution or 
laws of the United States. By this means, if a State law was passed 
impairing the obligation of a contract, and the State tribunals sus- 
tained the validity of the law, the mischief could be corrected in 
this court. The legislation of Congress, and the proceedings pro- 
vided for under it, were corrective in their character. ISTo attempt 
was made to draw into the United States courts the litigation of 
contracts generally; and no such attempt would have been sus- 
tained. We do not say that the remedy provided was the only one 
that might have been provided in that case. Probably Congress 
had power to pass a law giving to the courts of the United States 
direct jurisdiction over contracts alleged to be impaired by a State 
law; and under the broad provisions of the act of March 3d, 1875, 
ch. 137, 18 Stat., 470, giving to the circuit courts jurisdiction of 
all cases arising under the Constitution and laws of the United 
States, it is possible that such jurisdiction now exists. But under 
that, or any othe"^ law, it must appear as well by allegation, as 



CIVIL RIGHTS CASES. 533 

proof at the trial, that the Constitution had been violated by the 
action of the State legislature. Some obnoxious State law passed, 
or that might be passed, is necessary to be assumed in order to lay 
the foundation of any federal remedy in the case; and for the 
very sufficient reason, that the constitutional prohibition is against 
State laws impairing the obligation of contracts. 

And so in the present case, until some State law has been 
passed, or some State action through its officers or agents has been 
taken, adverse to the rights of citizens sought to be protected by 
the Fourteenth Amendment, no legislation of the United States 
under said amendment nor any proceeding under such legislation, 
can be called into activity: for the prohibitions of the a,inendment 
are against State laws and acts done under State authority. Of 
course, legislation may, and should be, provided in advance to 
meet the exigency when it arises; but it should be adapted to the 
mischief and wrong which the amendment was intended to pro- 
vide against; and that is. State laws, or State action of some kind, 
adverse to the rights of the citizen secured by the amendment. 
Such legislation cannot properly cover the whole domain of rights 
appertaining to life, liberty and property, defining them and pro- 
viding for their vindication. Thajt would be to establish a code of 
municipal law regulative of all private rights between man and 
man in society. It would be to make Congress take the place of 
the State legislatures and to supersede them. It is absurd to affirm 
that, because the rights of life, liberty and property (which include 
all civil rights that men have), are by the amendment sought to 
be protected against invasion on the part of the State without due 
process of law. Congress may therefore provide due process of law 
for their vindication in every case; and that, because the denial 
by a State to any persons, of the equal protection of the laws, is 
prohibited by the amendment, therefore Congress may establish 
laws for their equal protection. In fine, the legislation which Con- 
gress is authorized to adopt in this behalf is not general legislation 
upon the rights of the citizen, but corrective legislation, that is, 
such as may be necessary and proper for counteracting such laws 
as the States may adopt or enforce, and which, by the amendment, 
they are prohibited from making or enforcing, or such acts and 
proceedings as the States may commit or take, and which, by the 
amendment, they are prohibited from committing or taking. It is 
noi necessary for us to state, if we could, what legislation would 
be proper for Congress to adopt. It is sufficient for us to examine 
whether the law in question is of that character. 

An inspection of the law shows that it makes no reference what- 



534 CASES ON CONSTITUTIONAL LAW. 

ever to any supposed or apprehended violation of tlie Fourteenth 
Amendment on the part of the States. It is not predicated on aiiy 
such view. It proceeds ex cliredo to declare that certain acts com- 
mitted by individuals shall be deemed offenses, and shall be prose- 
cuted and punished by proceedings in the courts of the United 
States. It does not profess to be corrective of any constitutional 
wrong committed by the States; it does not make its operation to 
depend upon any such wrong committed. It applies equally to 
cases arising in States which have the justest laws respecting the 
personal rights of citizens, and whose authorities are ever ready to 
enforce such laws, as to those which arise in States that may have 
violated the prohibition of the amendment. In other words, it 
steps into the domain of local jurisprudence, and lays down rules 
for the conduct of individuals in society towards each other, and 
imposes sanctions for the enforcement of those rules, without refer- 
ring in any manner to any supposed action of the State or its 
authorities. 

If this legislation is appropriate for enforcing the prohibitions 
of the amendment, it is difficult to see where it is to stop. Why 
may not Congress with equal show of authority enact a code of 
laws for the enforcement and vindication of all rights of life, lib- 
erty, and property? If it is supposable that the States may deprive 
persons of life, liberty, and property without due process of law 
(and the amendment itself does not suppose this), why should not 
Congress proceed at once to prescribe due process of law for the 
protection of every one of these fundamental rights, in every possi- 
ble case, as well as to prescribe equal privileges in inns, public 
conveyances, and theatres? The truth is, that the implication of a 
power to legislate in this manner is based upon the assumption 
that if the States are forbidden to legislate or act in a particular 
way on a particular subject, and power is conferred upon Congress 
to enforce the prohibition, this gives Congress power to legislate 
generally upon that subject, and not merely power to provide 
modes of redress against such State legislation or action. The 
assumption is certainly unsound. It is repugnant to the Tenth 
Amendment of the Constitution, which declares that powers not 
delegated to the United States by the Constitution, nor prohibited 
by it to the States, are reserved to the States respectively or to the 
people. 

We have not overlooked the fact that the fourth section of the 
act now under consideration has been held by this court to be 
constitutional. That section declares "that no citizen, possessing 
all other qualifications which are or may be prescribed by law. 



CIVIL RIGHTS CASES. 525 

shall be disqualified for service as grand or petit juror in any court 
of the United States, or of any State, on account of race, color, or 
previous condition of servitude; and any officer or other person 
charged with any duty in the selection or summoning of jurors 
who shall exclude or fail to summon any citizen for the cause 
aforesaid, shall, on conviction thereof, be deemed guilty of a mis- 
demeanor, and be fined not more than five thousand dollars." In 
Ex parte A^irginia, 100 U. S., 339, it was held that an indictment 
against a State officer under this section for excluding persons of 
color from the jury list is sustainable. But a moment's attention 
to its terms will show that the section is entirely corrective in its 
character. Disqualifications for service on juries are only created 
by the law, and the first part of the section is aimed at certain dis- 
qualifying laws, namely, those which make mere race or color a 
disqualification; and the second clause is directed against those 
who, assuming fo use the authority of the State government, carry 
into effect such a rule of disqualification. In the Virginia case, 
the State, through its officer, enforced d rule of disqualification 
which the law was intended to abrogate and counteract. Whether 
the statute-book of the Starte actually laid down any such rule of 
disqualification, or not, the State, through its officer, enforced such 
a rule: and it is against such State action, through its officers and 
agents, that the last clause of the section is directed. This aspect 
of the law was deemed sufficient to divest it of any unconstitu- 
tional character, and makes it differ widely from the first and sec- 
ond sections of the same act which we are now considering. 

These sections, in the objectionable features before referred to, 
are different also from the law ordinarily called the "Civil Eights 
Bill," originally passed April 9th, 1866,*^ 14 Stat., 27, ch. 31, and 
re-enacted with some modifications in sections 16, 17, and 18, of 
the Enforcement Act, passed May 31st, 1870, 16 Stat., 140, ch. 
114. That law, as re-enaoted, after declaring that all persons with- 
in the jurisdiction of the United States shall have the same right 
in every State and Territory to make and enforce contracts, to sue, 
be parties, give evidence, and to the full and equal benefit of all 
laws and proceedings for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses and exactions of every kind, and 
none other, any law, statute, ordinance, regulation or custom to 
the contrary notwithstanding, proceeds to enact, that any person 
who, under co.'or of any law, statute, ordinance, regulation, or cus- 
tom, shall subject, or cause to be subjected, any inhabitant of any 
State or Territory to the deprivation of any rights secured or pro- 



526 CASES ON CONSTITUTIONAL LAW. 

tected by the preceding section (above quoted), or to different 
punishment, pains, or penalties, on account of such person being 
an ahen, or by reason of his color or race, than is prescribed for 
the punishment of citizens, shall be deemed guilty of a misde- 
meanor, and subject to fine and imprisonment as specified in the 
act. This law is clearly corrective in its character, intended to 
counteract and furnish redress against State laws and proceedings, 
and customs having the force of law, which sanction the wrongful 
acts specified. In the Eevised Statutes, it is true, a very important 
clause, to wit, the words "any law, statute, ordinance, regulation or 
custom to the contrary notwithstanding," which gave the de- 
claratory section its point and effect, are omitted; but the penal 
part, by which the declaration is enforced, and which is really the 
effective part of the law, retains the reference to State laws, by 
making the penalty apply only to those who should subject parties 
to a deprivation of their rights under color of any statute, ordi- 
nance, custom, etc., of any State or Territory: thus preserving the 
corrective character of the legislation. Eev. St., § § 1977, 1978, 
1979, 5510. The Civil Eights Bill here referred to is analogous 
in its character to what a law would have been under the original 
Constitution, declaring that the validity of contracts should not 
be impaired, and that if any person bound by a contract should 
refuse to comply with it, under color or pretence that it had been 
rendered void or invalid by a State law, he should be liable to an 
action upon it in the courts of the United States, with the addi- 
tion of a penalty for setting up such an unjust and unconstitutional 
defense. 

In this connection it is proper to state that civil rights, such as 
are guaranteed by the Constitution against State aggression, can- 
not be impaired by the wrongful acts of individuals, unsupported 
by State authority in the shape of laws, customs, or judicial or 
executive proceedings. The wrongful act of an individual, un- 
supported by any such authority, is simply a private wrong, or a 
crime of that individual; an invasion of the rights of the injured 
party, it is true, whether they affect his person, his property, or his 
reputation; but if not sanctioned in some way by the State, or not 
done under State authority, his rights remain in full force, and 
may presumably be vindicated by resort to the laws of the State 
for redress. An individual cannot deprive a man of his right to 
vote, to hold property, to buy and sell, to sue in the courts, or to be 
a witness or a juror; he may, by force or fraud, interfere with the 
enjoyment of the right in a particular case; he may commit an 
assault against the person, or commit murder, or use ruffian vio- 

i 



CIVIL RIGHTS CASES. 537 

lence at the polls, or slander the good name of a fellow-citizen; 
but, unless protected in these wrongful acts by some shield of State 
law or State authority, he cannot destroy or injure the right; he 
will only render himself amenable to satisfaction or punishment; 
and amenable therefor to the laws of the State where the wrong- 
ful acts are committed. Hence, in all those cases where the Con- 
stitution seeks to protect the rights of the citizen against dis- 
criminative and unjust laws of the State by prohibiting such laws, 
it is not individual offenses, but abrogation and denial of rights, 
which it denounces, and for which it clothes the Congress with 
power to provide a remedy. This abrogation and denial of rights, 
for which the States alone were or could be responsible, was the 
great seminal and fundamental wrong which was intended to be 
remedied. And the remedy to be provided must necessarily be 
predicated upon that wrong. It must assume that in the cases 
provided for, the evil or wrong actually committed rests upon some 
State law or State authority for its excuse and perpetration. 

Of course^ these remarks do not apply to those cases in which 
Congress is clothed with direct and plenary powers of legislation 
over the whole subject, accompanied with an express or implied 
denial of such power to the States, as in the regulation of com- 
merce with foreign nations, among the several States, and with 
the Indian tribes, the coining of money, the establishment of post- 
offices and post-roads, the declaring of war, etc. In these cases 
Congress has power to pass laws for regulating the subjects specified 
in every detail, and the conduct and transactions of individuals in 
respect thereof. But where a subject is not submitted to the gen- 
eral legislative power of Congress, but is only submitted thereto 
for the purpose of rendering effective some prohibition against par- 
tieiTlar State legislation or State action in reference to that subject, 
the power given is limited by its object, and any legislation by 
Congress in the matter must necessarily be corrective in its char- 
acter, adapted to counteract and redress the operation of such pro- 
hibited State laws or proceedings of State officers. 

If the principles of interpretation which we have laid down are 
correct, as we deem them to be (and they are in accord with the 
principles laid down in the cases before referred to, as well as in 
the recent case of United States v. Harris, 106 U. S., G29), it_ia_ 
jclear that the law in question cannot be sustained by any grant of 
/legislative power made to Congress by the Fourteenth Amendment^ 
^T^at amendment prohibits the States from denying to any person 
the equal protection of the laws, and declares that Congress shall 
have power to enforce, by appropriate legislation, the provisions 



528 CASES ON CONSTITUTIONAL LAW. 

of the amendment. Tlie law in question, without any reference 
to adverse State legislation on the subject, declares that all persons 
shall be entitled to equal accommodations and privileges of inns, 
public conveyances, and places of public amusement, and imposes a 
penalty upon any individual who shall deny to any citizen such 
equal accommodations and privileges. This is not corrective legis- 
tion; it is primary and direct; it takes immediate and absolute pos- 
session of the subject of the right of admission to inns, public con- 
veyances, and places of amusement. It supersedes and displaces 
State legislation on the same subject, or only allows it permissive 
force. It ignores such legislation, and assumes that the matter is 
one that belongs to the domain of national regulation. Whether 
it would not have been a more effective protection of the rights of 
citizens to have clothed Congress with plenary power over the 
whole subject, is not now the question. TThat we have to decide 
is, whether such plenary power has been conferred upon. Congress 
bj the Fourteenth Amendment; and, in our judgment, it has not. 
■/-"We have discussed the question presented by the law on the 
'assumption that a right to enjoy equal accommodation and privi- 
leges in all inns, public conveyances, and places of public amuse- 
ment, is one of the essential rights of the citizen which no State 
can abridge or interfere with. Wliether it is such a right, or not, 
is a different question which, in the view we have taken of the 
validity of the law on the ground already stated, it is not necessary 
to examine. 

TTe have also discussed the validity of the law in reference to 
cases arising in the States only; and not in reference to cases 
arising in the Territories or the District of Columbia, which are 
subject to the plenary legislation of Congress in every branch of 
municipal regulation. "Wliether the law would be a valid one as 
applied to the Territories and the District is not a question for 
consideration in the cases before us: they all being cases arising 
within the limits of States. And whether Congress, in the exer- 
cise of its power to regulate commerce amongst the several States, 
might or might not pass a law regulating rights in public convey- 
ances passing from one State to another, is also a question which is 
not now before us, as the sections in question are not conceived in 
any such view. 

But the power of Congress to adopt direct and primary, as dis- 
tinguished from corrective legislation, on the subject in hand, is 
sought, in the second place, from the Thirteenth Amendment, 
which abolishes slavery. This amendment declares "that neither 
slavery, nor involuntary servitude, except as a punishment for 



CIVIL RIGHTS CASES. 529 

crime, whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their Jurisdiction;" 
and it gives Congress power to enforce the amendment by appro- 
priate legislation. 

This amendment, as well as the Fourteenth, is undoubtedly 
self-executing without any ancillary legislation, so far as its terms 
are applicable to any existing state of circumstances. By its own 
unaided force and effect it abolished slavery, and established uni- 
versal freedom. Still, legislation may be necessary and proper to 
meet all the various cases and circumstances to be affected by it, 
and to prescribe proper modes of redress for its violation in letter 
or spirit. And such legislation may be primary and direct in its 
character; for the amendment is not a mere prohibition of State 
laws establishing or upholding slavery, but an absolute declaration 
that slavery or involuntary servitude shall not exist in any part of 
the United States. 

It is true that slavery cannot exist without law, any more than 
property in lands and goods can exist without law: and, therefore, 
the Thirteenth Amendment may be regarded as nullifying all State 
laws which establish or uphold slavery. But it has a reflex char- 
acter also, establishing and decreeing universal civil and political 
freedom throughout the United States; and it is assumed, that the 
power vested in CongTcss to enforce the article by appropriate leg- 
islation, clothes Congress with power to pass all laws necessary 
and proper for abolishing all badges and incidents of slavery in the 
Uiiited__State^ and upon this assumption it is claimed, that this 
is sufficient authority for declaring by law that all persons shall 
have equal accommodations and privileges in all inns, public con- 
veyances, and places of amusement; the argument being, that the 
denial of such equal accommodations and privileges is, in itself, a 
subjection to a species of servitude within the meaning of the 
amendment. Conceding the major proposition to be true, that 
Congress has a right to enact all necessary and proper laws for the 
obliteration and prevention of slavery with all its badges and inci- 
dents, is the minor proposition also true, that the denial to any 
person of admission to the accommodations and privileges of an 
inn, a public conveyance, or a theatre, does subject that person to 
any form of servitude, or tend to fasten upon him any badge of 
slavery? If it does not, then power to pass the law is not found iif\ 
the Thirteenth Amendment. 

In a very able and learned presentation of the cognate question 
as to the extent of the rights, privileges and immunities of citizens 
which cannot rightfully be abridged by State laws under the Four- 
34 



530 CASES ON CONSTITUTIONAL LAW. 

teenth Amendment, made in a former case, a long list of burdens 
and disabilities of a servile character, incidental to feudal vassalage 
in France, and which, were abolished by the decrees of the Xational 
Assembly, was presented for the purjDOse of showing that all ine- 
qualities and observances exacted by one man from another were 
servitudes, or badges of slavery, which a great nation, in its effort 
to establish universal liberty, made haste to wipe out and destroy. 
But these were servitudes imposed by the old law, or by long cus- 
tom, which had the force of law, and exacted by one man from 
another without the latters consent. Should any such servitudes 
be imposed by a State law, there can be no doubt that the law 
would be repugnant to the Fourteenth, no less than to the Thir- 
teenth Amendment; nor any greater doubt that Congress has ade- 
quate power to forbid any such servitude from being exacted. 

But is there any similarity between such servitudes and a denial 
by the owner of an inn, a public conveyance, or a theatre, of its 
accommodations and privileges to an individual, even though the 
denial be founded on the race or color of that individual? "Where 
does any slavery or servitude, or badge of either, arise from such 
an act of denial? "Whether it might not be a denial of a right 
which, if sanctioned by the State law, would be obnoxious to the 
prohibitions of the Fourteenth Amendment, is another question. 
— Bui_what has it to do with the question of slavery? 

It may be that by the Black Code (as it was called), in the times 
when slaver}' prevailed, the proprietors of inns and public convey- 
ances were forbidden to receive persons of the African race, be- 
cause it might assist slaves to escape from the control of their mas- 
ters. This was merely a means of preventing such escapes, and 
was no part of the servitude itself. A law of that kind could not 
have any such object now, however justly it might be deemed an 
invasion of the party's legal right as a citizen, and amenable to the 
prohibitions of the Fourteenth Amendment. 

The long existence of African slavery in this country gave us 
very distinct notions of what it was, and what were its necessary 
incidents. Compulsory service of the slave for the benefit of the 
master, restraint of his movements except by the master's will, dis- 
ability to hold property, to make contracts, to have a standing in 
court, to be a witness against a white person, and such like burdens 
and incapacities, were the inseparable incidents of the institution. 
Severer punishments for crimes were imposed on the slave than on 
free persons guilty of the same offenses. Congress, as we have 
seen, by the Civil Eights Bill of 1866, passed in view of the Thir- 
teenth Amendment, before the Fourteenth was adopted, under- 



CIVIL RIGHTS CASES. 531 

took to wipe out these burdens and disabilities, the necessary inci- 
dents of slavery, constituting its substance and visible form; and 
to secure to all citizens of every race and color, and without regard 
to previous servitude, those fundamental rights which are the 
essence of civil freedom, namely, the same right to make and en- 
force contracts, to sue, be parties, give evidence, and to inherit, 
purchase, lease, sell and convey property, as is enjoyed by white 
citizens. Whether this legislation was fully authorized by the 
Thirteenth Amendment alone, without the support which it after- 
ward received from the Fourteenth Amendment, after the adoption 
of which it was re-enacted with some additions, it is not necessary 
to inquire. It is referred to for the purpose of showing that at 
that time (in 18G6) Congresis did not assume, under the authority 
given by the Thirteenth Amendment, to adjust what may be called 
the social rights of men and races in the community; but only to 
declare and vindicate those fundamental rights which appertain 
to the essence of citizenship, and the enjoyment or deprivation of 
which constitutes the essential distinction between freedom and 
slavery. 

/ We must not forget that the province and scope of the Thir- 
/teenth and Fourteenth Amendments are different; the former 
I simply abolished slavery: the latter prohibited the States from 
''^bridging the privileges or immunities of citizens of the United 
States; from depriving them of life, liberty, or property without 
due process of law, and from denying to any the equal protection 
of the laws. The amendments are different, and the powers of 
Congress under them are different. What Congress has power to 
do under one, it may not have power to do under the other. Under 
the Thirteenth Amendment, it has only to do with slavery and its 
incidents. Under the Fourteenth Amendment, it has power to 
counteract and render nugatory all State laws and proceedings 
which have the effect to abridge any of the privileges or immuni- 
ties of citizens of the United States, or to deprive them of life, 
liberty or property without due process of law, or to deny to any 
of them the equal protection of the laws. Under the Thirteenth 
Amendment, the legislation, so far as necessary or proper to erad- 
icate all forms and incidents of slavery and involuntary servitude, 
may be direct and primary, operating upon the acts of individuals, 
whether sanctioned by State legislation or not; under the Four- 
teenth, as we have already shown, it must necessarily be, and can 
only be, corrective in its character, addressed to counteract and 
afford relief against State regulations or proceedings. 
'The only question under the present head, therefore, is, whether 



532 CASES ON CONSTITUTIONAL LAW. 

the refusal to any persons of the accommodations of an inn, or a 
public conveyance, or a place of public amusement, by an individ- 
ual, and without any sanction or support from any State law or 
regulation, does inflict upon such persons any manner of se Fvdtude^ 



or form of slavery, as those terms are understood in this country? 
Many wrongs may be obnoxious to the prohibitions of the Four- 
teenth Amendment which are not, in any Just sense, incidents or 
elements of slavery. Such, for example, would be the taking of 
private property without due process of law; or allowing persons 
who have committed certain crimes (horse-stealing, for example) 
to be seized and hung by the posse comitatus without regular trial; 
or denying to any person, or class of persons, the right to pursue 
any peaceful avocations allowed to others. What is called class 
legislation would belong to this category, and would be obnoxious 
to the prohibitions of the Fourteenth Amendment, but would not 
necessarily be so to the Thirteenth, when not involving the idea 
of any subjection of one man to another. The Thirteenth Amend- 
ment has respect, not to distinctions of race, or class, or color, but 
to slavery. The Fourteenth Amendment extends its protection to 
races and classes, and prohibits any State legislation which has 
the effect of denying to any race or class, or to any individual, the 
equal protection of the laws. 

r~T^ow, conceding, for the sake of the argument, that the admis- 
/ sion to an inn, a public conveyance, or a place of public amuse- 
/ ment, on equal terms with all other citizens, is the right of every 
' man and all classes of men, is it any more than one of those rights 
which the States by the Fourteenth Amendment are forbidden to 
deny to any person? And is the Constitution violated until the 
denial of the right has some State sanction or authority? Can the 
act of a mere individual, the owner of the inn, the public convey- 
ance or place of amusement, refusing the accommodation, be justly 
regarded as imposing any badge of slavery or servitude upon the 
applicant, or only as inflicting an ordinary civil injury, properly 
cognizable by the laws of the State, and presumably subject to 
redress by those laws until the contrary appears? 

After giving to these questions all the consideration which 
their importance demands, we are forced to the conclusion that 
such an act of refusal has nothing to do with slavery or involun- 
tary servitude, and that if it is violative of any right of the party, 
his redress is to be sought under the laws of the State; or if those 
laws are adverse to his rights and do not protect him, his remedy 
will be found in the corrective legislation which Congress has 
adopted, or may adopt, for counteracting the effect of State laws, or 



CIVIL RIGHTS CASES. 533 

State action, prohibited by the Fourteenth Amendment. It would 
1)6 running the slavery argument into the ground to make it apjDly 
to every act of discrimination which a person may see fit to make 
as to the guests he will entertain, or as to the people he will take 
into his coach or cab or car, or admit to his concert or theatre, or 
deal with in other matters of intercourse or business. Innkeepers 
and public carriers, by the laws of all the States, so far as we are 
aware, are bound, to the extent of their facilities, to furnish proper 
accommodations to all unobjectionable persons who in good faith 
apply for them. If the laws themselves make any unjust discrim- 
ination, amenable to the prohibitions of the Fourteenth Amend- 
ment, Congress has full power to accord a remedy under that 
amendment and in accordance with it. 

When a man has emerged from slavery, and by the aid of benefi- 
cent legislation has shaken off the inseparable concomitants of that 
state, there must be some stage in the progress of his elevation when 
he takes the rank of a mere citizen, and ceases to be the special 
favorite of the laws, and when his rights as a citizen, or a man, are 
to be protected in the ordinary modes by which other men's rights 
are protected. There were thousands of free colored people in this 
country before the abolition of slavery, enjoying all the essential 
rights of life, liberty and property the same as white citizens; yet 
no one, at that time, thought that it was any invasion of his per- 
sonal status as a freeman because he was not admitted to all the 
privileges enjoyed by white citizens, or because he was subjected to 
discriminations in the enjoyment of accommodations in inns, pub- 
lic conveyances and places of amusement. Mere discriminations 
on account of race or color were not regarded as badges of slavery. 
If, since that time, the enjoyment of equal rights in all these re- 
spects has become established by constitutional enactment, it is 
not by force of the Thirteenth Amendment (which merely abolislies 
slaver}^), but by force of the Thirteenth [Fourteenth?] and Fif- 
teenth Amendments. 

On the whole, we are of opinion, that no countenance of au- 
thority for the passage of the law in question can be found in either 
the Thirteenth or Fourteenth Amendments of the Constitution; 
and no other ground of authority for its passage being suggested, 
it must necessarily be declared void, at least so far as its operation 
in the several States is concerned. 

This, conclusion disposes of the cases now under consideration. 
In the cases of the United States v. Michael Kyan, and of Eichard 
A. Eobinson and Wife v. The Memphis & Charleston Eailroad 
Company, the judgments must be affirmed. In the . other cases,. 



534 CASES ON CONSTITUTIONAL LAW. 

the answer to be given will be that the first and second sections 
of the act of Congress of March 1st, 1875, entitled "An Act to 
protect all citizens in their civil and legal rights," are unconstitu- 
tional and void, and that Judgment should be rendered upon the 
several indictments in those cases accordingly. 

A7id it is so ordered. 
[Me. Justice Harlan delivered a dissenting opinion.] 



HUETADO V. CALIFOENIA. 

110 U. S., 516. Decided 1884. 

The Constitution of the State of California, adopted in 1879, 
in Article I, section 8, provides as follows: 

"Offences heretofore required to be prosecuted by indictment 
shall be prosecuted by information, after examination and com- 
mitment by a magistrate, or by indictment without such examina- 
tion and commitment as may be prescribed by law. A grand jury 
shall be summoned at least once a year in each county." . . . 

[Hurtado, having been charged with murder by an information 
filed with the District Attorney, was tried by jury, convicted, and 
sentenced to be hanged. Thereupon he filed certain objections to 
the execution of the sentence, one of which recited "that the said 
plaintiff in error had been held to answer for the said crime of 
murder by the district attorney of the said county of Sacramento, 
upon an information filed by him, and had been tried and illegally 
found guilty of said crime, without any presentment or indictment 
of any grand or other jury, and that the judgment rendered upon 
the alleged v^dict of the jury in such case was and is void, and if 
.executed would deprive the plaintiff in error of his life or liberty 
without due process of law."] 

Mr, Justice Matthews delivered the opinion of the court. 
After reciting the facts in the foregoing language, he continued: 

It is claimed on behalf of the prisoner that the conviction and 
sentence are void, on the ground that they are repugnant to that 
clause of the Fourteenth Article of Amendment of the Constitution 
of the United States which is in these words: 

"Nor shall any State deprive any person of life, liberty, or 
property without due process of law." 



HURTADO V. CALIFORNIA. 535 

The proposition of law we are asked to affirm is that an indict- 
ment or presentment by a grand Jury as known to the common law 
of England, is essential to that "due process of law," when applied 
to prosecutions for felonies, which is secured and guaranteed by 
this provision of the Constitution of the United States, and which 
accordingly it is forbidden to the States respectively to dispense 
with in the administration of criminal law. . . . [Here follow 
citations from Kalloch v. Superior Court, 56 Cal., 229, and Eowan 
V. The State, 30 Wis., 129.] 

On the other hand, it is maintained on behalf of the. plaintiff in 
error that the phrase "due process of law" is equivalent to "law of 
the land," as found in the 29th chapter of Magna Charta; that by 
immemorial usage it has acquired a fixed, definite, and technical 
meaning; that it refers to and includes, not only the general prin- 
ciples of public liberty and private right, which lie at the founda- 
tion of all free government, but the very institutions which, ven- 
erable by time and custom, have been tried by experience and found 
fit and necessary for the preservation of those principles, and which, 
having been the birthright and inheritance of every English sub- 
ject, crossed the Atlantic with the colonists and were transplanted 
and established in the fundamental laws of the State; that, having 
been originally introduced into the Constitution of the United 
States as a limitation upon the powers of the government, brought 
into being by that instrument, it has now been added as an addi- 
tional security to the individual against oppression by the States 
themselves; that one of these institutions is that of the grand jury, 
an indictment or presentment by which against the accused in 
cases of alleged felonies is an essential part of due process of law, 
in order that he may not be harassed or destroyed by prosecutions 
founded only upon private malice or popular fury. 

This view is certainly supported by the authority of the great 
name of Chief Justice Shaw and of the court in which he pre- 
sided, which, in Jones v. Eobbins, 8 Gray, 329, decided that the 
12th article of the Bill of Eights of Massachusetts, a transcript 
of Magna Charta in this respect, made an indictment or present- 
ment of a grand jury essential to the validity of a conviction 
in cases of prosecutions for felonies. In delivering the opinion 
of the court in that case, Merrick, J., alone dissenting, the Chief 
Justice said: 

"The right of individual citizens to be secure from an open and 
public accusation of crime, and from the trouble, expense, and 
anxiety of a public trial before a probable cause is established by 
the presentment and indictment of a grand jury, in case of high 



536 CASES ON CONSTITUTIONAL LAW. 

offenses, is Justly regarded as one of the securities to the inno- 
cent against hasty, malicious, and oppressive public prosecutions, 
and as one of the ancient immunities and privileges of English 
liberty." . . . "It having been stated," he continued, "by 
Lord Coke, that by the 'law of the land' was intended a due course 
of proceeding according to the established rules and practice of 
the courts of common law, it may, perhaps, be suggested that this 
might include other modes of proceeding sanctioned by the com- 
mon law, the most familiar of which are, by informations of dif- 
ferent kinds, by the officers of the crown in the name of the 
King. But, in reply to this, it may be said that Lord Coke himself 
explains his own meaning by saying '^the law of the land,' as ex- 
pressed in Magna Charta, was intended due process of law, that is, 
by indictment or presentment of good and lawful men. And fur- 
ther, it is stated on the authority of Blackstone, that informations 
of every kind are confined by the constitutional law to misde- 
meanors only. 4 Bl. Com., 310." . . . 

This view of the meaning of Lord Coke is the one taken by 
Merrick, J., in his dissenting opinion in Jones v. Bobbins, 8 Gray, 
329, who states his conclusions in these words: 

"It is the forensic trial, under a broad and general law, operat- 
ing equally upon every member of our community, which the words 
'by the law of the land,' in Magna Charta, and in every subsequent 
declaration of rights which has borrowed its phraseology, make 
essential to the safety of the citizen, securing thereby both his 
liberty and his property, by preventing the unlawful arrest of 
his person or any unlawful interference with his estate." See 
also State v. Starling, 15 Eich. (S. C.) Law, 120. 

Mr. Eeeve, in 2 History of Eng. Law, 43, translates the phrase, 
Qiisi'per legale judicium parium suortim velp)er legem terrm. 

"But by the judgment of his peers, or by some other legal process 
or proceeding adapted by the law to the nature of the case." 

Chancelor Kent, 2 Com., 13, adopts this mode of construing 
the phrase. Quoting the language of Magna Charta, and refer- 
ring to Lord Coke's comment upon it, he says: 

"The better and larger definition of due process of law is that 
it means law in its regular course of administration through courts 
of justice." 

This accords with what is said in Westervelt v. Gregg, 12 IST. Y., 
202, by Denio, J., p. 212: 

"The provision was designed to protect the citizen against all 
mere acts of power, whether flowing from the legislative or ex- 
ecutive branches of the government." 



HURTADO V. CALIFORNIA, 537 

The principal and true meaning of the phrase has never been 
more tersely or accurately stated than by Mr, Justice Johnson, 
in Bank of Columbia v. Okely, 4 Wheat., 235-244: 

""As to the words from Magna Charta, incorporated into the Con- 
stitution of Maryland, after volumes spoken and written with a 
view to their exposition, the good sense of mankind has at last 
settled down to this: that they were intended to secure the indi- 
vidual from the arbitrary exercise of the powers of government, 
unrestrained by the established principles of private right and 
distributive justice." 

And the conclusion rightly deduced is, as stated by Mr. Cooley, 
Constitutional Limitations, 356: 

"The principles, then, upon which the process is based, are to 
determine whether it is 'due process' or not, and not any con- 
siderations of mere form. Administrative and remedial process 
may be changed from time to time, but only with due regard to 
the landmarks established for the protection of the citizen." 

It is urged upon us, however, in argument, that the claim made 
in behalf of the plaintiff in error is supported by the decision of 
this court in Murray's Lessee v. Hoboken Land & Improvement 
Company, 18 How., 272. There Mr. Justice Curtis, delivering 
the opinion of the court, after showing, p. 276, that due process 
of law must mean something more than the actual existing law 
of the land, for otherwise it would be no restraint upon legisla- 
tive power, proceeds as follows: 

"To what principle, then, are we to resort to ascertain whether 
this process, enacted by Congress, is due process? To this the 
answer must be twofold. We must examine the Constitution itself 
to see whether this process be in conflict with any of its provisions. 
If not found to be so, we must look to those settled usages and 
modes of proceeding existing in the common and statute law of 
England before the emigration of our ancestors, and which are 
shown not to have been unsuited to their civil and political con- 
dition by having been acted on by them after the settlement of 
this- country." 

This, it is argued, furnishes an indispensable test of what consti- 
tutes "due process of law;" that any proceeding otherwise author- 
ized by law, which is not thus sanctioned by usage, or which super- 
sedes and displaces one that is, cannot be regarded as due process 
of law. 

But this inference is unwarranted. The real syllabus of the pas- 
sage quoted is, that a process of law, which is not otherwise for- 
bidden, must be taken to be due process of law, if it can show the 



538 CASES ON CONSTITUTIONAL LAW. 

sanction of settled usage botli in England and in this country; but 
it by no means follows that nothing else can be due process of 
law. The point in the case cited arose in reference to a summary 
proceeding, questioned on that account, as not due process of law. 
The answer was: however exceptional it may be, as tested by 
definitions and principles of ordinary procedure, neyertheless, tbis, 
in substance, has been immemorially the actual law of the land, 
and, therefore, is due process of law. But to hold that such a 
characteristic is essential to due process of law, would be to deny 
every quality of the law but its age, and to render i: incapable 
of progress or improvement. It would be to stamp upon our juris- 
prudence the unchangeableness attributed to the laws of the Medes 
and Persians. 

This would be all the more singular and surprising, in this quick 
and active age, when we consider that, owing to the progressive 
development of legal ideas and institutions in England, the words 
of Magna Charta stood for very different things at the time of the 
separation of the American colonies from what they represented 
originally. . . . 

This flexibility and capacity for growth and adaptation is the 
peculiar boast and excellence of the common law. Sir James 
Mackintash ascribes this principle of development to Magna 
Charta itself. To use his own language: 

"It was a peculiar advantage that the consequences of its prin- 
ciples were, if we may so speak, only discovered slowly and grad- 
ually. It gave out on each occasion only so much of the spirit 
of liberty and reformation as the circumstances of succeeding gen- 
erations required and as their character would safely bear. For 
almost five centuries it was appealed to as the decisive authority 
on behalf of the people, though commonly so far only as the neces- 
sities of each case demanded." 1 Hist, of England, 221. 

The Constitution of the United States was ordained, it is true, 
by descendants of Englishmen, who inherited the traditions of 
English law and history; but it was made for an undefined and 
expanding future, and for a people gathered and to be gathered 
from many nations and of many tongues. And while we take just 
pride in the principles and institutions of the common law, we are 
not to forget that in lands where other S3'stems of jurisprudence 
prevail, the ideas and processes of civil justice are also not un- 
known. Due process of law, in spite of the absolutism of con- 
tinental governments, is not alien to that code which survived the 
Eoman Empire as the foundation of modern civilization in Europe, 
and which has given us that fundamental maxim of distributive 



HURTADO V. CALIFORNIA. 539 

justice, — suum cuique trihuere. There is nothing in Magna Charta, 
rightly construed as a broad charter of pubKc right and law, which 
ought to exclude the best ideas of all systems and of every age; 
and as it was the characteristic principle of the common law to 
draw its inspiration from every fountain of justice, we are not 
to assume that the sources of its supply have been exhausted. On 
the contrary, we should expect that the new and various experi- 
ences of our own situation and system will mould and shape it into 
new and not less useful forms. 

The concessions of Magna Charta were wrung from the King 
as guaranties against the oppressions and usurpations of his pre- 
rogative. It did not enter into the minds of the barons to provide 
security against their own body or in favor of the Commons by 
limiting the power of Parliament; so that bills of attainder, ex 
post facto laws, laws declaring forfeitures of estates, and other 
arbitrary acts of legislation which occur so frequently in English 
history, were never regarded as inconsistent with the law of the 
land; for notwithstanding what was attributibd to Lord Coke in 
Bonham's Case, 8 Eep., 115, 118a, the omnipotence of Parlia- 
ment over the common law was absolute, even against common 
right and reason. The actual and practical security for English 
liberty against legislative tyranny was the power of a free public 
opinion represented by the Commons. 

In this country written constitutions were deemed essential to 
protect the rights and liberties of the people against the encroach- 
ments of power delegated to their governments, and the provisions 
of Magna Charta were incorporated into Bills of Eights. They 
were limitations upon all the powers of government,* legislative as 
well as executive and judicial. 

It necessarily happened, therefore, that as these broad and 
general maxims of liberty and justice held in our system a different 
place and performed a different function from their position and 
office in English constitutional histoiy and law, they would receive 
and justify a corresponding and more comprehensive interpreta- 
tion. Applied in England only as guards against executive usurpa- 
tion and tyranny, here they have become bulwarks also against ar- 
bitrary legislation; but, in that application, as it would be incon- 
gruous to measure and restrict them by the ancient customary Eng- 
lish law, they must be held to guarantee, not particular forms of 
procedure, but the very substance of individual rights to life, lib- 
erty, and property. 

Eestraints that could be fastened upon executive authority with 
precision and detail, might prove obstructive and injurious when 



540 CASES ON CONSTITUTIONAL LAW. 

imposed on the just and necessary discretion of legislative power; 
and, while in every instance, laws that violated express and specific 
injunctions and prohibitions might, without embarrassment, be 
judicially declared to be void, yet, any general principle or maxim, 
founded on the essential nature of law, as a just and reasonable 
expression of the public will and of government, as instituted by 
popular consent and for the general good, can only be applied to 
cases coming clearly within the scope of its spirit and purpose, and 
not to legislative provisions merely establishing forms and modes 
of attainment. Such regulations, to adopt a sentence of Burke's, 
"may alter the mode and application, but have no power over the 
substance of original justice." Tract on the Popery Laws, 6 
Burke's Works, ed. Little & Brown, 323. 

Such is the often-repeated doctrine of this court. . . . 
[Here are given quotations from Munn v. 111., 94 U. S., 113; 
Walker v. Savinet, 92 U. S., 90; Kennard v. Louisiana, 92 U. S., 
480; Davidson v. K 0., 96 U. S., 97.] 

We are to co^istrue this phrase in the Fourteenth Amendment 
by the usus loquendi of the Constitution itself. The same words 
are contained in the Fifth Amendment. That article makes spe- 
cific and express provision for perpetuating the institution of the 
grand jury, so far as relates to prosecutions for the more aggra- 
vated crimes under the laws of the United States. It declares 
that: 

"jSTo person shall be held to answer for a capital or otherwise 
infamous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia when in actual service in time of war or public danger; nor 
shall any person be subject for the same ofl^ense to be twice put in 
jeopardy of life or limb; nor shall he be compelled in any crim- 
inal case to be witness against himself." [It then immediately 
adds:] "JSTor be deprived of life, liberty, or property without 
due process of law." 

According to a recognized canon of interpretation, especially ap- 
plicable to formal and solemn instruments of constitutional law, 
we are forbidden to assume, without clear reason to the contrary, 
that any part of this most important amendment is superfluous. 
The natural and obvious inference is, that in the sense of the Con- 
stitution, "due process of law" was not meant or intended to in- 
clude, ex vi termini, the institution and procedure of a grand jury 
in any case. The conclusion is equally irresistible, that when the 
same phrase was employed in the Fourteenth Amendment to re- 
strain the action of the States, it was used in the same sense and 



HURTADO V. CALIFORNIA. 541 

with no greater extent; and that if in the adoption of that amend- 
ment it had been part of its purpose to perjDetuate the institution of 
the grand jury in all the States, it would have embodied, as did the 
Fifth Amendment, express declarations to that effect. Due process 
of law in the latter refers to that law of the land which derives 
its authority from the legislative powers conferred upon Congress 
by the Constitution of the United States, exercised within the 
limits therein prescribed, and interpreted according to the prin- 
ciples of the common law. In the Fourteenth Amendment, by 
parity of reason, it refers to that law of the land in each State 
which derives its authority from the inherent and reserved powers 
of the State, exerted within the limits of those fundamental prin- 
ciples of liberty and justice which lie at the base ol all our civil 
and political institutions, and llio greatest security for which re- 
sides in the right of the people to make their own laws, and alter 
them at their pleasure. . . . [Here follows a citation from 
Missouri v. Lewis, 101 U. S., 22-31.] 

But it is not to be supposed that these legislative powers are 
absolute and despotic, and that the amendment prescribing due 
process of law is too vague and indefinite to operate as a practical 
restraint. It is not every act, legislative in form, that is law. Law 
is- something more than mere will exerted as an act of power. It 
must be not a special rule for a particular person or a particular 
case, but, in the language of Mr. Webster, in his familiar defini- 
tion, "the general law, a law which hears before it condemns, 
which proceeds upon inquiry, and renders judgment only after 
trial," so "that every citizen shall hold his life, liberty, property, 
and immunities under the protection of the general rules which 
govern society;" and thus excluding, as not due process of law, 
acts of attainder, bills of pains and penalties, acts of confiscation, 
acts reversing judgments, and acts directly transferring one man's 
estate to another, legislative judgments and decrees, and other 
similar special, partial, and arbitrary exertions of power under 
the forms of legislation. Arbitrary power, enforcing its edicts to 
the injury of the persons and property of its objects, is not law, 
whether manifested as the decree of a personal monarch or of 
an impersonal multitude. And the limitations imposed by our 
constitutional law upon the action of the governments, both State 
and national, are essential to the preservation of public and pri- 
vate rights, notwithstanding the representative character of our 
political institutions. The enforcement of these limitations by 
judicial process is the device of self-governing communities to pro- 
tect the rights of individuals and minorities, as well again&t the 



542 . CASES ON CONSTITUTIONAL LAW. 

power of numbers as against the violence of public agents tran- 
scending the limits of lawful authority, even when acting in the 
name and wielding the force of the government. 

The Supreme Court of Mississippi, in a well-considered case, — 
Brown v. Levee Commissioners, 50 Miss., 468, — speaking of the 
meaning of the phrase "due process of law," says: "The principle 
does not demand that the laws existing at any point of time shall 
be irrepealable, or that any forms of remedies shall necessarily 
continue. It refers to certain fundamental rights which that sys- 
tem of jurisprudence, of which ours is a derivative, has always 
recognized. If any of these are disregarded in the proceedings by 
which a person is condemned to the loss of life, liberty, or property, 
then the deprivation has not been by 'due process of law.' " 
. . . [Here follows a citation from Loan Association v. To- 
peka, 30 Wallace, 655-662.] 

It follows that any legal proceeding enforced by public author- 
ity, whether sanctioned by age and custom, or newly devised in 
the discretion of the legislative power, in furtherance of the gen- 
eral public good, which regards and preserves these principles of 
liberty and justice, must be held to be due process of law. 

The Constitution of Connecticut, adopted in 1818 and in force 
when the Fourteenth Amendment took effect, requires an indict- 
ment or presentment of a grand jury only in cases where the pun- 
ishment of the crime charged is death or imprisonment for life, 
and yet it also declares that no person shall "l3e deprived of life, 
liberty,* or property but by due course of law." It falls short, 
therefore, of that measure of protection which it is claimed is 
guaranteed by Magna Charta to the right of personal liberty; 
notwithstanding which it is no doubt justly said in Swift's Digest, 
17, that 

"This sacred and inestimable right, without which all others 
are of little value, is enjoyed by the people of this State in as full 
extent as in any country on the globe, and in as high a degree 
as is consistent with the nature of civil government. No individ- 
ual or body of men has a discretionary or arbitrary power to com- 
mit any person to prison: no man can be restrained of his liberty, 
be prevented from removing himself from place to place as he 
chooses, be compelled to go to a place contrary to his inclination, 
or be in any way imprisoned or confined, unless by virtue of the 
express laws of the land." 

Tried by these principles, we are unable to say that the substitu- 
tion for a presentment or indictment by a grand jury of the pro- 
ceeding by information, after examination and commitment by 



UNITED STATES v. KAGAMA. 543 

a magistrate, certifying to the probable guilt of the defendant, 
with the right on his part to the aid of counsel, and to the cross- 
examination of the witnesses produced for the prosecution, is not 
due process of law. It is, as we have seen, an ancient proceeding 
at common law, which might include every case of an offense of 
less grade than a felony, except misprision of treason; and in every 
circumstance of its administration, as authorized by the statute of 
California, it carefully considers and guards the substantial in- 
terest of the prisoner. It is merely a preliminary proceeding, and 
can result in no final judgment, except as a consequence of a reg- 
ular judicial trial, conducted precisely as in cases of indictments. 

In reference to this mode of proceeding at the common law, and 
which he says ^'is as ancient as the common law itself," Blackstone 
adds (4 Com., 305): 

"And as to those offenses in which informations were allowed 
as well as indictments,, so long as they were confined to this high 
and respectable jurisdiction, and were carried on in a legal and 
regular course in his Majesty's Court of King's Bench, the subject 
had no reason to complain. The same notice was given, the same 
process was issued, the same pleas were allowed, the same trial by 
jury was had, the same judgment was given by the same judges, as 
if the prosecution had originally been by indictment." 

For these reasons, finding no error therein, the judgment of the 
Supreme Court of California is affirmed. 

[Mr. Justice Harlan rendered a dissenting opinion.] 



UNITED STATES v. KAGAMA. 
118 U. S., 375. Decided 1886. 

The case is stated in the opinion of the court. . . . 

Mr. Justice Miller delivered the opinion of the court. 

The case is brought here by certificate of division of opinion 
between the Circuit Judge and the District Judge holding the 
Circuit Court of the United States for District of California. 

The questions certified arise on a demurrer to an indictment 
against two Indians for murder committed on the Indian reserva- 
tion of Hoopa Valley, in the State of California, the person mur- 
dered being also an Indian of said reservation. 



544 CASES ON CONSTITUTIONAL LAW. 

Thougli there are six questions certified as tlie subject of differ- 
ence, the point of them all is well set out in the third and sixth, 
which are as follows: — 

"3. Whether the provisions of said section 9 (of the act of 
Congress of March 3, 1885), making it a crime for one Indian 
to commit murder upon another Indian, upon an Indian reserva- 
tion situated wholly within the limits of a State of the Union, and 
making such Indian so committing the crime of murder within and 
upon such Indian reservation 'subject to the same laws' and 
subject to be 'tried in the same courts, and in the same manner, 
and subject to the same penalties as are all other persons' com- 
mitting the crime of murder 'within the exclusive jurisdiction of 
the United States,' is a constitutional and valid law of the United 
States?" 

"6. TThether the courts of the United States have jurisdiction 
or authority to try and punish an Indian belonging to an Indian 
tribe for committing the crime of murder upon another Indian 
belonging to the same Indian tribe, both sustaining the usual 
tribal relations, said crime having been committed upon an Indian 
reservation made and set apart for the use of the Indian tribe to 
which said Indians both belong?" 

The indictment sets out in two counts that Kagama, alias Pactah 
Billy, an Indian, murdered lyouse, alias Ike, another Indian, at 
Humboldt County, in the State of California, within the limits 
of the Hoopa Valley Eeservation, and it charges Mahawaha, alias 
Ben, also an Indian, with aiding and abetting in the murder. 

The law referred to in the certificate is the last section of the 
Indian appripriation act of that year, and is as follows: 

"§ 9, That immediately upon and after the date of the passage 
of this act all Indians committing against the person or property 
of another Indian or other person any of the following crimes, 
namely, murder, manslaughter, rape, assault with intent to kill, 
arson, burglary and larceny, within any Territory of the United 
States, and either within or without the Indian reservation, shall 
be subject therefor to the laws of said Territory relating to said 
crimes, and shall be tried therefor in the same courts and in the 
same manner, and shall be subject to the same penalties, as are 
all other persons charged with the commission of the said crimes, 
respectively; and the said courts are hereby given jurisdiction 
in all such cases; and all such Indians committing any of the 
above crimes against the person or property of another Indian or 
other person, within the boundaries of any State of the United 
States, and within the limits of any Indian reservation, shall be 



UNITED STATES v. KAGAMA. 545 

subject to the same laws, tried in the same courts and in the same 
manner, and subject to the same penalties, as are all other persons 
committing any of the above crimes within the exclusive juris- 
diction of the United States." 23 Stat., ch. 341, 362; § 9, 385. 

The above enactment is clearly separable into two distinct 
definitions of the conditions under which Indians may be punished 
for the same crimes as defined by the common law. The first 
of these is where the offense is committed within the limits of a 
territorial government, whether on or off an Indian reservation. 
In this class of cases the Indian charged with the crime shall be 
judged by the laws of the Territory on that subject, and tried by 
its courts. This proposition itself is new in legislation of Congress, 
which has heretofore only undertaken to punish an Indian who 
sustains the usual relation to his tribe, and who commits the 
offense in the Indian country, or on an Indian reservation, in ex- 
ceptional cases; as where the offense was against the person or 
property of a white man, or was some violation of the trade and 
intercourse regulaitions imposed by Congress on the Indian tribes. 
It is new, because it now proposes to punish these offenses when 
they are committed by one Indian on the person or property of 
another. 

The second is where the offense is committed by one Indian 
against the person or property of another, within the limits of 
a State of the Union, but on an Indian reservation. In this case, 
of which the State and its tribunals would have jurisdiction if the 
offense was committed by a white man outside an Indian reserva- 
tion, the courts of the United States are to exercise jurisdiction 
as if the offense had been committed at some place within the 
exclusive jurisdiction of the United States. The first clause sub- 
jects all Indians guilty of these crimes committed within the limits 
of a Territory, to the laws of that Territory, and to its courts for 
trial. The second, which applies solely to offenses by Indians 
which are committed within the limits of a State and the limits of 
a reservation, subjects the offenders to the laws of the United 
States passed for the government of places under the exclusive 
jurisdiction of those laws, and to trial by the courts of the United 
States. This is a still further advance, as asserting this jurisdic- 
tion over the Indians within the limits of the States of the Union. 

Although the offense charged in this indictment was com- 
mitted within a State and not within a Territory, the considera- 
tions which are necessary to a solution of the problem in regard 
to the one must in a large degree affect the other. 

The Constitution of the United States is almost silent in regard 
35 



546 CASES ON CONSTITUTIONAL LAW. 

to the relations of the goYernment which was established by it to 
the numerous tribes of Indians within its borders. 

In declaring the basis on which representation in the lower 
branch of Congress and direct taxation should be apportioned, 
it was fixed that it should be according to numbers, excluding In- 
dians not taxed, which, of course, excluded nearly all of that race, 
but which meant that if there were such within a State as were 
taxed to support the government, they should be counted for rep- 
resentation, and in the computation for direct taxes levied by the 
United States. This expression, excluding Indians not taxed, is 
found in the XlVth amendment, where it deals with the same 
subject under the new conditions produced by the emancipation 
of the slaves. Neither of these shed much light on the power of 
Congress over the Indians in their existence as tribes, distinct 
from the ordinary citizens of a State or Territory. 

The mention of Indians in the Constitution which has received 
most attention is that found in the clause which gives Congress 
"power to regulate commerce with foreign nations and among the 
several States, and with the Indian tribes." 

This cause is relied on in the argument in the present case, the 
proposition being that the statute under consideration is a regula- 
tion of commerce with the Indian tribes. But we think it would 
be a very strained construction of this clause, that a system of 
criminal laws for Indians living peaceably in their reservations, 
which left out the entire code of trade and intercourse laws justly 
enacted under that provision, and established punishments for 
the common-law crimes of murder, manslaughter, arson, burglary, 
larceny, and the like, without any reference to their relation to 
any kind of commerce, was authorized by the grant of power to 
regulate commerce with the Indian tribes. While we are not 
able to see, in either of these clauses of the Constitution and its 
amendments, any delegation of power to enact a code of criminal 
law for the punishment of the worst class of crimes known to 
civilized life when committed by Indians^ there is a suggestion in 
the manner in which the Indian tribes are introduced into that 
clause, which may have a bearing on the subject before us. The 
commerce witli foreign nations is distinctly stated as submitted 
to the control of Congress. Were the Indian tribes foreign na- 
tions? If so, they came within the first of the three classes of 
commerce mentioned, and did not need to be repeated as Indian 
tribes. Were they nations, in the minds of the framers of the 
Constitution? If so, the natural phrase would have been "foreign 
nations and Indian nations," or, in the terseness of language uni- 



UNITED STATES v. KAGAMA. 547 

formly used by the framers of the instrument, it would naturally 
have been "foreign and Indian nations." And so in the case of 
The Cherokee Nation v. The State of Georgia, 5 Pet., 1, 20, brought 
in the Supreme Court of the United States, under the declara- 
tion that the Judicial power extends to suits between a State and 
foreign States, and giving to the Supreme Court original Jurisdic- 
tion where a State is a party, it was conceded that Georgia as a 
State came within the clause, but held that the Cherokees were 
not a State or nation within the meaning of the Constitution, so 
as to be able to maintain the suit. 

But these Indians are within the geographical limits of theUnitcd 
States. The soil and the people within these limits are under the 
political control of the government of the United States, or of 
the States of the Union, There exist within the broad domain of 
sovereignty but these two. There may be cities, counties, and 
other organized bodies with limited legislative functions, but the}'' 
are all derived from, or exist in, subordination to one or the other 
of these. The territorial governments owe all their powers to the 
statutes of the United States conferring on them the powers which 
they exercise, and which are liable to be withdrawn, modified, or 
repealed at any time by Congress. What authority the State gov- 
ernments may have to enact criminal laws for the Indians will 
be presently considered. But this power of Congress to organize 
territorial governments, and make laws for their inhabitants, arises 
not so much from the clause in the Constitution in regard to dis- 
posing of and making rules and regulations concerning the Terri- 
tory and other property of the United States, as from the owner- 
ship of the country in which the Territories are, and the right of 
exclusive sovereignty which must exist in the national government, 
and can be found nowhere else. Murphy v. Eamsey, 114 U. S., 
15, 44. 

In the case of American Ins. Co. v. Canter, 1 Pet., 511, 543, in 
which the condition of the people of Florida, then under a terri- 
torial government, was under consideration, Marshall, Chief Jus- 
tice, said: "Perhaps the power of governing a Territory belonging 
to the United States, which has not, by becoming a State, acquired 
the means of self-government, may result necessarily from the fact 
that it is not within the Jurisdiction of any particular State, and 
is within the power and Jurisdiction of the United States. The 
right to govern may be the inevitable consequence of the right to 
acquire territory. Whichever may be the source whence the power 
is derived, the possession of it is unquestioned." 

In the case of the United States v. Eogers, 4 How., 567, 572, 



548 CASES ON CONSTITUTIONAL LAW. 

where a white man pleaded in abatement to an indictment for 
murder committed in the country of the Cherokee Indians, that he 
had been adopted by and become a member of the Cherokee tribe. 
Chief Justice Taney said: "The country in which the crime is 
charged to hare been committed is a part of the territory of the 
United States, and not within the limits of any particular State. 
It is true it is occupied by the Cherokee Indians. But it has been 
assigned to them by the United States as a place of domicil for the 
tribe, and they hold with the assent of the United States, and 
under their authority." After referring to the policy of the Euro- 
pean nations and the United States in asserting dominion over 
all the country discovered by them, and the justice of this course, 
he adds: "But had it been otherwise, and were the right and the 
propriety of exercising this power now open to question, yet it is 
a question for the law-making and political departments of the 
government, and not for the judicial. It is our duty to expound 
and execute the law as we find it, and we think it too firmly and 
clearly established to admit of dispute, that the Indian tribes, 
residing within the territorial limits of the United States, are sub- 
ject to their authority, and when the country occupied by one of 
them is not within the limits of one of the States, Congress may 
by law punish any offense committed there, no matter whether 
the offender be a vrhite man or an Indian." 

The Indian reservation in the case before us is land bought by 
the United States from Mexico by the treaty of Guadaloupe Hi- 
dalgo, and the whole of California, with the allegiance of its in- 
habitants, many of whom were Indians, was transferred by that 
treaty to the United States. 

The relation of the Indian tribes living within the borders of the 
United States, both before and since the Eevolution, to the people 
of the United States has always been an anomalous one and of a 
complex character. 

Following the policy of the European governments in the dis- 
covery of America towards the Indians who were found here, the 
colonies before the Eevolution and the States and the United 
States since, have recognized in the Indians a possessory right to 
the soil over which they roamed and hunted and established occa- 
sional villages. But they asserted an ultimate title in the land 
itself, by which the Indian tribes were forbidden to sell or transfer 
it to other nations or peoples without the consent of this para- 
mount authority. When a tribe wished to dispose of its land, or 
any part of it, or the State or the United States wished to pur- 
chase it, a treaty with the tribe was the only mode in which this 



UNITED STATES v. KAGAMA. 549 

could be done. The United States recognized no right in private 
persons, or in other nations, to make such a purchase by treaty 
or otherwise. With the Indians themselves these relations are 
equally diflticult to define. They were, and always have been, re- 
garded as having a semi-independent position when they preserved 
their tribal relations; not as States, not as nations, not as pos- 
sessed of the full attributes of sovereignty, but as a separate peo- 
ple, with the power of regulating their internal and social rela- 
tions, and thus far not brought under the laws of the Union 
or of the State within whose limits they resided. 

Perhaps the best statement of their position is found in the 
two opinions of this court by Chief Justice Marshall in the case of 
The Cherokee Nation v. Georgia, 5 Pet., 1, and in the case of 
Worcester v. State of Georgia, 6 Pet., 515, 536. These opinions are 
exhaustive; and in the separate opinion of Mr. Justice Baldwin, in 
the former, is a very valuable resume of the treaties and statutes 
concerning the Indian tribes previous to and during the confed- 
eration. 

In the first of the above cases it was held that these tribes were 
neither States nor nations, had only some of the attributes of sov- 
ereignty, and could not be so far recognized in that capacity as 
to sustain a suit in the Supreme Court of the United States. In 
the second case it was said that they were not subject to the juris- 
diction asserted over them by the State of Georgia, which, because 
they were within its limits, where they had been for ages, had 
attempted to extend her laws and the jurisdiction of her courts 
over them. 

In the opinions in these cases they are spoken of as 'Vards of 
the nation," "^pupils," as local dependent communities. In tliis 
spirit the United States has conducted its relations to them from 
its organization to this time. But, after an experience of a hun- 
dred years of the treaty-making system of government, Congresrs 
has determined upon a new departure — to govern them by acts of 
Congress. This is seen in the act of March 3, 1871, embodied in 
§ 2079 of the Eevised Statutes: 

''No Indian nation or tribe, within the territory of the United 
States, shall be acknowledged or recognized as an independent 
nation, tribe, or power, with whom the United States may con- 
tract by treaty; but no obligation of any treaty lawfully made and 
ratified with any such Indian nation or tribe prior to March third, 
eighteen hundred and seventy-one, shall be hereby invalidated or 
impaired." 

The case of Crow Dog, 109 U. S., 556, in which an agreement 



550 CASES ON CONSTITUTIONAL LAW. 

with, the Sioux Indians, ratified hy an act of Congress, was sup- 
posed to extend over them the laws of the United States and the 
jurisdiction of its courts, covering murder and other grave crimes, 
shows tlie purpose of Congress in this new departure. The de- 
cision in that case admits that if the intention of Congress had 
been to punish, by the United States courts, the murder of one 
Indian by another, the law would have been valid. But the court 
could not see, in the agreement witb the Indians sanctioned by 
Congress, a purpose to repeal § 2146 of the Eevised Statutes, 
which expressly excludes from that jurisdiction the case of a crime 
committed by one Indian against another in the Indian country. 

/The passage of the act now under consideration was designed to 
remove that objection, and to go further by including such crimes 

[ on reservations tying within a State. 

Is this latter fact a fatal objection to the law? The statute itself 
contains no express limitations upon the powers of a State or the 
jurisdiction of its courts. If there be any limitation in either of 
these, it grows out of the implication arising from the fact that 
Congress has defined a crime committed within the State, and 
made it punishable in the courts of the United States. But Con- 
gress has done this, and can do it with regard to all offenses relat- 
ing to matters to which the Federal authority extends. Does that 
authority extend to this case? 

It will be seen at once that the nature of the offense (murder) 
is one which in almost all cases of its commisison is punishable 
by the laws of the States, and within the jurisdiction of their 
courts. The distinction is claimed to be that the offense under 
the statute is committed by an Indian, that it is committed on a 
reservation set apart within the State for the residence of the tribe 
of Indians by the United States, and the fair inference is that 
the offending Indian shall belong to that or some other tribe. 
It does not interfere with the process of the State courts within 
the reservation, nor with the operation of State laws upon white 
people found there. Its effect is confined to the acts of an Indian 
of some tribe, of a criminal character, committed within the limits 
of the reservation. 

It seems to us that this is within the competency of Congress. 
These Indian tribes are the wards of the nation. They are com- 
munities dependent on the United States. Dependent largely for 
their food. Dependent for their political rights. They owe no 
allegiance to the States, and receive from them no protection. Be- 
cause of the local ill feeling, the people of the States where they 
are found are often their deadliest enemies. From their very weak- 



UNITED STATES V. KAGAMA. 551 

ness and helplessness, so largely due to the course of dealing of 
the Federal Government with them and the treaties in which it has 
been promised, there arises the duty of protection, and with it the 
power. This has always been recognized by the Executive and 
by Congress, and by this court, whenever the question has arisen. 

In the case of Worcester v. The State of Georgia, above cited, 
it was held that, though the Indians had by treaty sold their land 
within that State and agreed to remove away, which they failed 
to do, the State could not, while they remained on those lands, 
extend its laws, criminal and civil, over the tribes; that the duty 
and power to compel their removal was in the United States, and 
the tribe was under their protection, and could not be subjected 
to the laws of the State and the process of its courts. 

The same thing was decided in the case of Fellows v. Black- 
smith & Others, 19 How., 366. In this case, also, the Indians had 
sold their lands under supervision of the States of Massachusetts 
and New York, and had agreed to remove within a given time. 
When the time came a suit to recover some of the land was brought 
in the Supreme Court of New York, which gave judgment for the 
plaintiff. But this court held, on writ of error, that the State could 
not enforce this removal, but the duty and power to do so was 
in the United States. See also the case of the Kansas Indians, 5 
Wall., 737; New York Indians, 5 Wall., 761. 

The power of the General Government over these remnants of 
a race once powerful, now weak and diminished in numbers, is 
necessary to their protection, as well as to the safety of those among 
whom they dwell. It must exist in that government, because it 
never has existed anywhere else, because the theater of its exercise 
is within the geographical limits of the United States, because it 
has never been denied, and because it alone can enforce its laws 
on all the tribes. 

We ansiver the questions liTopounded to us, that the 9th section 
of the act of March, 1885, is a valid law in hoth its branches, and 
that the Circuit Court of the United States for the District of Cali- 
fornia has jurisdiction of the offense charged in the indictment 
in this case. 



XII. THE FEDERAL GOVERNMENT AND 
THE STATES. 



TEXAS V. WHITE et al. 

7 Wallace, 700. Decided 1868. 
[The facts are sufficiently stated in the opinion of the court.] 

The Chief Justice delivered the opinion of the court. 

This is an original suit in this court, in which the State of Texas, 
claiming certain bonds of the United States as her property, asks 
an injunction to restrain the defendants from receiving payment 
from the jSTational government, and to compel the surrender of the 
bonds to the State. 

It appears from the bill, answers, and proofs, that the United 
States, by act of September 9, 1850, offered to the State of Texas, 
in compensation for her claims connected with the settlement of 
her boundar}^, $10,000,000 in five per cent, bonds, each for the 
sum of $1,000; and that this offer was accepted by Texas. One- 
half of these bonds were retained for certain purposes in the Na- 
tional treasury, and the other half were delivered to the State. 
The bonds thus delivered were dated January 1, 1851, and were all 
made payable to the State of Texas, or bearer, and redeemable 
after the 31st day of December, 1864. They were received in behalf 
of the State by the comptroller of public accounts, under authority 
of an act of the legislature, which, besides giving that authority, 
provided that no bond should be available in the hands of any 
holder until after indorsement by the governor of the State. 

After the breaking out of the rebellion, the insurgent legislature 
of Texas, on the 11th of Januar}^, 1862, repealed the act requiring 
the indorsement of the governor,^ and on the same day provided 
for the organization of a military board, composed of the governor, 
comptroller, and treasurer; and authorized a majority of that board 
to provide for the defense of the State by means of any bonds in 
the treasur}^, upon any account, to the extent of $1,000,000.^ The 

1 Acts of Texas, 1862, p. 45. 2 Texas Laws, 55. 

552 



TEXAS V. WHITE. 553 

defense contemplated by the act was to be made against the United 
States by war. Under this authority the militaiy board entered 
into an agreement with George W. White and John Chiles, two 
of the defendants, for the sale to them of one hundred and thirty- 
five of these bonds, then in the treasury of the State, and seventy- 
six more, than deposited with Droege & Co., in England; in pay- 
ment for which they engaged to deliver to the board a large quan- 
tity of cotton cards and medicines. This agreement was made on 
the 12th of January, 1865. On the 12th of March, 1865, White and 
Chiles received from the military board one hundred and thirty- 
five of these bonds, none of which were indorsed by any governor 
of Texas. Afterward, in the course of the years 1865 and 1866, 
some of the same bonds came into the possession of others of the 
defendants, by purchase, or as security for advances of money. 

Such is a brief outline of the case. It will be necessary here- 
after to refer more in detail to some particular circumstances of it. 

The first inquiries to which our attention was directed by coun- 
sel, arose upon the allegations of the answer of Chiles (1) that no 
suificient authority is shown for the prosecution of the suit in 
the name and on the behalf of the State of Texas; and (2) that 
the State, having severed her relations with a majority of the 
States of the Union, and having by her ordinance of secession at- 
tempted to throw off her allegiance to the Constitution and gov- 
ernment of the United States, has so far changed her status as 
to be disabled from prosecuting suits in the National courts. 

The first of these allegations is disproved by the evidence. A 
letter of authority, the authenticity of which is not disputed, has 
been produced, in which J. W. Throckmorton, elected governor 
under the constitution adopted in 1866, and proceeding under 
an act of the State legislature relating to these bonds, expressly 
ratifies and confirms the action of the solicitors who filed the bill, 
and empowers them to prosecute this suit; and it is further proved 
by the affidavit of Mr. Paschal, counsel for the complainant, that 
he was duly appointed by Andrew J. Hamilton, while provisional 
governor of Texas, to represent the State of Texas in reference to 
the bonds in controversy, and that his appointment has been 
renewed by E. M. Pease, the actual governor. If Texas was a State 
of the Union at the time of these acts, and these persons or either 
of them, were competent to represent the State, this proof leaves no 
doubt about the question of authority. 

The other allegation presents a question of jurisdiction. It is 
not questioned that this court has original jurisdiction of suits by 
States against citizens of other States, or that the States entitled 



554 CASES ON CONSTITUTIONAL LAW. 

to invoke tliis jurisdiction must be States of the Union. But^ it 
is equally clear that no such jurisdiction "has been conferred upon 
this court of suits by any other political communities than such 
States. 

If, therefore, it is true that the State of Texas was not at the 
time of filing this bill, or is not now, one of the United States, we 
have no jurisdiction of this suit, and it is our duty to dismiss it. 

It [the word state] describes sometimes a people or community 
of individuals united more or less closely in political relations, 
inhabiting temporarily or permanently the same country; often 
it denotes only the country or territorial region, inhabited by such 
a community; not unfrequently it is applied to the government 
under which the people live; at other times it represents the 
combined idea of people, territory, and government. . . . 

In the Constitution the term state most frequently expresses 
the combined idea just noticed, of people, territory, and govern- 
ment. A State, in the ordinary sense of the Constitution, is a 
political community of free citizens, occupying a territory of de- 
fined boundaries, and organized under a government sanctioned 
and limited by a written constitution, and established by the con- 
sent of the governed. It is the union of such states, under a com- 
mon constitution, which forms the distinct and greater political 
unit, which that Constitution designates as the United States, and 
makes of the people and states which compose it one people and 
one country. . . . 

In all respects, so far as the objects could be accomplished by 
ordinances of the convention, by acts of the legislature, and by 
votes of the citizens, the relations of Texas to the Union were 
broken up, and new relations to a new government were established 
for them. 

The position thus assumed could only be maintained by arms, and 
Texas accordingly took part, with the other Confederate States, in 
the war of the rebellion, which these events made inevitable. Dur- 
ing the whole of that war there was no governor, or judge, or any 
other State officer in Texas, who recognized the Xational author- 
ity. Xor was any officer of the United States permitted to exer- 
cise any authority whatever under the ISTational government within 
the limits of the States, except under the immediate protection of 
the National militar}- forces. 

Did Texas, in consequence of these acts, cease to be a State? Or, 
if not, did the State cease to be a member of the Union? 

It is needless to discuss, at length, tjie question whether the right 



TEXAS V. WHITE. 555 

of a State to withdraw from the Union for any cause, regarded by 
herself as sufficient, is consistent with the Constitution of the 
United States. 

The Union of the States never was a purely artificial and arbi- 
trary relation. It began among the Colonies, and grew out of com- 
mon origin, mutual sympathies, kindred principles, similar inter- 
ests, and geographical relations. It was confirmed and strength- 
ened by the necessities of war, and received definite form, and 
character, and sanction from the Articles of Confederation. By 
these the Union was solemnly declared to "be perpetual." And 
when these Articles were found to be inadequate to the exigencies 
of the country, the Constitution was ordained "to form a more 
perfect Union." It is difficult to convey the idea of indissoluble 
unity more clearly than by these words. What can be indissoluble 
if a perpetual Union, made more perfect, is not? 

But the perpetuity and indissolubility of the Union, by no means 
implies the loss of distinct and individual existence, or of the right 
of self-government by the States. Under the Articles of Confed- 
eration, each State retained its sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right not expressly 
delegated to the United States. Under the Constitution, though 
the powers of the States were much restricted, still, all powers not 
delegated to the United States, nor prohibited to the States, are 
reserved to the States respectively, or to the people. And we have 
already had occasion to remark at this term, that "the people of 
each State compose a State, having its own government, and en- 
dowed with all the functions essential to separate and independent 
existence," and that "without the States in union, there could be 
no such political body as the United States."^ Not only therefore 
can there be no loss of separate and independent autonomy to the 
States, through their union and under the Constitution, but it 
may be not unreasonably said that the preservation of the States, 
and the maintenance of their governments, are as much within 
the design and care of the Constitution as the preservation of the 
Union and the maintenance of the National government. The 
Constitution, in all of its provisions, looks to an indestructible 
Union, composed of indestructible States. 

"V\^ien, therefore, Texas became one of the United States, she 
entered into an indissoluble relation. All the obligations of per- 
petual union and all the guarantees of republican government in 
the Union, attached at once to the State. The act which con- 

1 County of Lane v. The State of Oregon, 7 Wallace, 76. 



556 CASES ON CONSTITUTIONAL LAW. 

summated her admission into the Union was something more than 
a compact; it was the incorporation of a new member into the 
political body. And it was final. The union between Texas and 
the other States was as complete, as perpetual, and as indissoluble 
as the union between the original States. There was no place for 
reconsideration, or revocation, except through revolution, or 
through consent of the States. 

Considered therefore as transacted under the Constitution, the 
ordinance of secession, adopted by the convention and ratified by 
a majority of the citizens of Texas, and all the acts of her legisla- 
ture intended to give effect to that ordinance, were absolutely null. 
They were utterly without operation in law. The obligations of 
the State, as a member of the Union, and of every citizen of the 
State, as a citizen of the United States, remained perfect and unim- 
paired. It certainly follows that the State did not cease to be a 
State, nor her citizens to be citizens of the Union. If this were 
otherwise, the State must have become foreign, and her citizens 
foreigners. The war must have ceased to be a war for the sup- 
pression of rebellion, and must have become a war for conquest and 
subjugation. 

Our conclusion therefore is, that Texas continued to be a State, 
and a State of the Union, notwithstanding the transactions to 
which we have referred. And this conclusion, in our judgment, 
is not in conflict with any act or declaration of any department of 
the National government, but entirely in accordance with the whole 
series of such acts and declarations since the first outbreak of the 
rebellion. 

But in order to the exercise, by a State, of the right to sue in 
this court, there needs to be a State government, competent to 
represent the State in its relations with the National government, 
so far at least as the institution and prosecution of a suit is con- 
cerned. 

And it is by no means a logical conclusion, from the premises 
which we have endeavored to establish, that the governmental 
relations of Texas to the Union remained unaltered. Obligations 
often remain unimpaired, while relations are greatly changed. 
The obligations of allegiance to the State, and of obedience to her 
laws, subject to the Constitution of the United States, are binding 
upon all citizens, whether faithful or unfaithful to them; but the 
relations which subsist while these obligations are performed, are 
essentially different from those which arise when they are disre- 
garded and set at nought. And the same must necessarily be true 
of the obligations and relations of States and citizens to the Union. 



TEXAS V. WHITE. 557 

No one has been bold enough to contend that, while Texas was con- 
trolled by a government hostile to the United States, and in affilia- 
tion with a hostile confederation, waging war upon the United 
States, senators chosen by her legislature, or representatives elected 
by her citizens, were entitled to seats in Congress; or that any suit, 
instituted in her name, .could be entertained in this court. All 
admit that, during this condition of civil war, the rights of the 
State as a member, and of her people as citizens of the Union, 
were suspended. The government and the citizens of the State, 
refusing to recognize their constitutional obligations, assumed the 
character of enemies, and incurred the consequences of rebellion. 

These new relations imposed new duties upon the United States. 
The first was that of suppressing the rebellion. The next was 
that of re-establishing the broken relations of the State with the 
Union. The first of these duties having been performed, the next 
necessarily engaged the attention of the National government. 

The authority for the performance of the first had been found 
in the power to suppress insurrection and carry on war; for the 
performance of the second, authority was derived from the obliga- 
tion of the United States to guarantee to every State in the Union 
a republican form of government. The latter, indeed, in the case 
of a rebellion which involves the government of a State, and for 
the time excludes the National authority from its limits, seems to 
be a necessary complement to the former. 

Of this, the case of Texas furnishes a striking illustration. When 
the war closed there was no government in the State except that 
which had been organized for the purpose of waging war against 
the United States. That government immediately disappeared. 
The chief functionaries left the State. Many of the subordinate 
officials followed their example. Legal responsibilities were an- 
nulled or greatly impaired. It was inevitable that great confusion 
should prevail. If order was maintained, it was where the good 
sense and virtue of the citizens gave support to local acting magis- 
trates, or supplied more directly the needful restraints. 

A great social change increased the difficulty of the situation. 
Slaves, in the insurgent States, with certain local exceptions, had 
been declared free by the Proclamation of Emancipation; and 
whatever questions might be made as to the effect of that act, 
under the Constitution, it was clear, from the beginning, that its 
practical operation, in connection with legislative acts of like 
tendency, must be complete enfranchisement. Wlierever the Na- 
tional forces obtained control, the slaves became freemen. Sup- 
port to the acts of Congress and the proclamation of the President, 



558 CASES ON CONSTITUTIONAL LAW, 

concerning slaves, was made a condition of amnesty^ by President 
Lincoln, in December, 1863, and by President Johnson, in May, 
1865.^ And emancipation was confirmed, ratlier than ordained, 
in the insurgent States, by the amendment to the Constitution 
prohibiting slavery throughout the Union, which was proposed by 
Congress in Februar}', 1865, and ratified, before the close of the 
following autumn, by the requisite three-fourths of the States.^ 

The new freemen necessarily became part of the people, and the 
people still constituted the State; for States, like individuals, retain 
their identity, though changed to some extent in their constituent 
elements. And it was the State, thus constituted, which was now 
entitled to the benefit of the constitutional guarantee. 

There being then no government in Texas in constitutional re- 
lations with the Union, it became the duty of the United States to 
provide for the restoration of such a government. But the restora- 
tion of the government which existed before the rebellion, without 
a new election of officers, was obviously impossible; and before 
any such election could be properly held, it was necessary that the 
old Constitution should receive such amendments as would con- 
form its provisions to the new conditions created by emancipation, 
and afford adequate security to the people of the State. 

In the exercise of the power conferred by the guarantee clause, 
as in the exercise of every other constitutional power, a discretion 
in the choice of means is necessarily allowed. It is essential only 
that the means must be necessary and proper for carrying into 
execution the power conferred, through the restoration of the 
State to its constitutional relations, under a republican form of 
government, and that no acts be done, and no authority exerted, 
which is either prohibited or unsanctioned by the Constitution. 

It is not important to review, at length, the measures which 
have been taken, under this power, by the executive and legislative 
departments of the jSTational government. It is proper, however, 
to observe that almost immediately after the cessation of organ- 
ized hostilities, and while the war yet smouldered in Texas, the 
President of the United States issued his proclamation appointing 
a provisional governor for the State, and providing for the assem- 
bling of a convention, with a view to the re-establishment of a 
republican government, under an amended constitution, and to 
the restoration of the State to her proper constitutional relations. 
A convention was accordingly assembled, the constitution amended, 

1 13 Stats, at Large, 737. 3 Jb., 774-775. 

2 lb., 758. 



TEXAS V. WHITE. 559 

elections held, and a State government, acknowledging its obliga- 
tions, to the Union, established. 

Whether the action then taken was, in all respects, warranted by 
the Constitution, it is not now necessary to determine. The power 
exercised by the President was supposed, doubtless, to be derived 
from his constitutional functions, as commander-in-chief; and, so 
long as the war continued, it cannot be denied that he might insti- 
tute temporary government within insurgent districts, occupied by 
the National forces, or take measures, in any State, for the restora- 
tion of State government faithful to the Union, employing, how- 
ever, in such efforts, only such means and agents as were author- 
ized by constitutional laws. 

But the power to carry into effect the clause of guarantee is pri- 
marily a legislative power, and resides in Congress. "Under the 
fourth article of the Constitution, it rests with Congress to decide 
what government is the established one in a State. For, as the 
United States guarantee to each State a republican government, 
Congress must necessarily decide what government is established 
in the State, before it can determine Mdiether it is republican or 
not." 

This is the language of the late Chief Justice, speaking for this 
court, in a case from Khode Island,* arising from the organization 
of opposing governments in that State. And we think that the 
principle sanctioned by it may be applied, with even more pro- 
priety, to the case of a State deprived of all rightful government, 
by revolutionary violence; though necessarily limited to cases 
where the rightful government is thus subverted, -or in imminent 
danger of being overthrown by an opposing government, set up 
by force within the State. 

The action of the President must, therefore, be considered as 
provisional, and, in that light, it seems to have been regarded by 
Congress. It was taken after the term of the 38th Congress had 
expired. The 39th Congress, which assembled in December, 1865, 
followed by the 40th Congress, which met in March, 1867, pro- 
ceeded, after long deliberation, to adopt various measures for reor- 
ganization and restoration. These measures were embodied in 
proposed amendments to the Constitution, and in the acts known 
as the Eeconstruotion Acts, which have been so far carried into 
effect, that a majority of the States which were engaged in the re- 
bellion have been restored to their constitutional relations, under 
forms of government, adjudged to be republican by Congress, 

4 Luther v. Borden, 7 Howard, 42. 



560 CASES ON CONSTITUTIONAL LAW, 

tlirougli the admission of tlieir "Senators and Eepresentatives into 
the councils of the Union." 

Xothing in the case before ns requires the court to pronounce 
judgment upon the constitutionality of any particular provision of 
these acts. 

But it is important to observe that these acts themselves show 
that the governments, which had been established and had been 
in actual operation under executive direction, were recognized by 
Congress as provisional, as existing, and as capable of continuance. 

By the act of ]\Iarch 2, 1867,° the first of the series, these gov- 
ernments were, indeed, pronounced illegal and were subjected to 
military control, and were declared to be provisional only; and by 
the supplementary act of July 19, 1867, the third of the series, it 
was further declared that it was the true intent and meaning of 
the act of March 2, that the governments then existing were not 
legal State governments, and if continued, were to be continued 
subject to the military commanders of the respective districts and 
to the paramount authority of Congress. We do not inquire here 
into the constitutionality of this legislation so far as it relates to 
military authority, or to the paramount authority of Congress. It 
suffices to say, that the terms of the acts necessarily imply recog- 
nition of actually existing governments; and that in point of fact, 
the governments thus recognized, in some important respects, still 
exist. 

What has thus been said generally describes, with sufficient ac- 
curacy, the situation of Texas. A provisional governor of the State 
was appointed by the President in 1865; in 1866 a governor was 
elected by the people under the constitution of that year; at a 
subsequent date a governor was appointed by the commander of the 
district. Each of the three exercised executive functions and actu- 
ally represented the State in the executive department. 

In the case before us each has given his sanction to the prosecu- 
tion of the suit, and we find no difficulty, without investigating the 
legal title of either to the executive office, in holding that the 
sanction thus given sufficiently warranted the action of the solicitor 
and counsel in behalf of the State. The necessary conclusion is that 
the suit was instituted and is prosecuted by competent authority. 

The question of jurisdiction being thus disposed of, we proceed 
to the consideration of the merits as presented by the pleadings 
and the evidence. . . . 

On the whole case, therefore^, our conclusion is that the State of 

5 14 stats, at Large, 428. 



TEXAS V. WHITE, 661 

Texas is entitled to the relief sought by her bill, and a decree must 
be made accordingly. 

Mk. Justice Geier dissenting. I regret that I am compelled to 
dissent from the opinion of the majority of the court on all the 
points raised and to be decided in this case. 

The first question in order is the jurisdiction of the court to 
entertain this bill in behalf of the State of Texas. 

The original jurisdiction of this court can be invoked only by 
one of the United S'tates. The Territories have no such right con- 
ferred on them by the Constitution, nor have the Indian tribes who 
are under the protection of the military authorities of the gov- 
ernment. 

Is Texas one of these United States? Or was she such at the 
time this bill was filed, or since? 

This is to be decided as a political fact, not as a legal fiction. 
This court is bound to know and notice the public history of the 
nation. 

If I regard the truth of history for the last eight years, I cannot 
discover the State of Texas as one of these United States. I do 
not think it necessary to notice any of the very astute arguments 
which have been advanced by the learned counsel in this case, to 
find the definition of a State, when we have the subject treated in 
a clear and common-sense manner by Chief Justice Marshall, in 
the case of Hepburn & Dundas v. Ellzey.® As the case is short, I 
hope to be excused for a full report of it, as stated and decided by 
the court. He says: 

"The question is, whether the plaintifl's, as residents of the Dis- 
trict of Columbia, can maintain an action in the Circuit Court of 
the United States for the District of Virginia. This depends on 
the act of Congress describing the jurisdiction of that court. The 
act gives jurisdiction to the Circuit Courts in cases between a citi- 
zen of the State in which the suit is brought, and a citizen of an- 
other State. To support the jurisdiction in this case, it must appear 
that Columbia is a State. On the part of the plaintiff, it has been 
urged that Columbia is a distinct political society, and is, therefore, 
a 'State' according to the definition of writers on general law. 
This is true; but as the act of Congress obviously uses the word 
'State' in reference to that term as used in the Constitution, it be- 
comes necessary to inquire whether Columbia is a State in the 
sense of that instrument. The result of that examination is a con- 
viction that the members of the American Confederacy only are the 

36 6 2 Cranch, 452. 



562 CASES ON CONSTITUTIONAL LAW. 

States contemplated in the ConstitiTtion. The House of Eepre- 
sentatives is to be composed of members chosen by the people of 
the several States, and each State shall have at least one repre- 
sentative. 'The Senate of the United States shall be composed of 
two senators from each State.' Each State shall appoint, for the 
election of the executive, a number of electors equal to its whole 
number of senators and representatives. These clauses show that 
the word 'State' is used in the Constitution as designating a mem- 
ber of the Union, and excludes from the term the signification 
attached to it by writers on the law of nations." 

Now we have here a clear and well-defined test by which we 
may arrive at a conclusion with regard to the questions of fact 
now to be decided. 

Is Texas a State, now represented by members chosen by the 
people of that State and received on the floor of Congress? Has she 
two senators to represent her as a State in the Senate of the United 
States? Has her voice been heard in the late election of President? 
Is she not now held and governed as a conquered province by mili- 
tary force? The act of Congress of March 2d, 1867, declares Texas 
to be a "rebel State," and provides for its government until a legal 
and republican State government could be legally established. It 
constituted Louisiana and Texas the fifth military district, and 
made it subject, not to the civil authority, but to the "military 
authorities of the United States." 

It is true that no organized rebellion now exists there, and the 
courts of the United States now exercise jurisdiction over the peo- 
ple of that province. But this is no test of the State's being in 
the Union; Dakota is no State, and yet the United States admin- 
ister justice there as they do in Texas. The Indian tribes, who are 
governed by military force, cannot claim to be States of the Union. 
Wherein does the condition of Texas differ from theirs? 

Now, by assuming or admitting as a fact the present status of 
Texas as a State not in the Union politically, I beg leave to protest 
against any charge of inconsistency as to judicial opinions hereto- 
fore expressed as a member of this court, or silently assented to. I 
do not consider myself bound to express any opinion judicially as 
to the constitutional right of Texas to exercise the rights and privi- 
leges of a State of this Union, or the power of Congress to govern 
her as a conquered province, to subject her to military domination, 
and keep her in pupilage. I can only submit to the fact as de- 
cided by the political position of the government; and I am not 
disposed to join in any essay to prove Texas to be a State of the 
Union, when Congress have decided that she is not. It is a question 



TARBLE'S CASE. 563 

of fact, I repeat, and of fact only. Politically, Texas is not a State 
in this Union. Whether rightfully out of it or not is a question 
not before the court. . . . 

Me. Justice Swayne: I concur with my brother Grier as to 
the incapacity of the State of Texas, in her present condition, to 
maintain an original suit in this court. The question, in my judg- 
ment, is one in relation to which this court is bound by the action 
of the legislative department of the government. 

Upon the merits of the case, I agree with the majority of my 
brethren. 

I am authorized to say that my brother Millee unites with me 
in these views. 



TARBLE'S CASE. 
13 Wallace, 397. Decided 187;.. 
Eeeoe to the Supreme Court of Wisconsin. 

This was a proceeding on habeas corpus for the discharge of one 
Edward Tarble, held in the custody of a recruiting officer of the 
United States as an enlisted soldier, on the alleged ground that he 
was a minor, under the age of eighteen years at the time of his 
enlistment, and that he enlisted without the consent of his father. 

The writ was issued on the 10th of August, 1869, by a court com- 
missioner of Dane County, Wisconsin, an officer authorized by the 
laws of that State to issue the writ of habeas corpus upon the peti- 
tion of parties imprisoned or restrained of their liberty, or of per- 
sons on their behalf. It was issued in this case upon the petition 
of the father of Tarble, in which he alleged that his son, who had 
enlisted under the name of Frank Brown, was confined and re- 
strained of his liberty by Lieutenant Stone, of the United States 
army, in the city of Madison, in that State and county; that the 
cause of his confinement and restraint was that he had, on the 20th 
of the preceding July, enlisted, and been mustered into the mili- 
tary service of the United States; that he was under the age of 
eighteen years at the time of such enlistment; that the same was 
made without the knowledge, consent, or approval of the peti- 
tioner; and was, therefore, as the petitioner was advised and be- 
lieved, illegal; and that the petitioner was lawfully entitled to the 
custody, care, and services of his son. . . . 



564 CASES ON CONSTITUTIONAL LAW. 

[Tlie commissioner held that the prisoner was illegally d<<;ta-lT:.€<i 
by Lieutenant Stone, and ordered his discharge. Afterwards Lieu- 
tenant Stone had the proceedings taken to the Supreme Court of 
"Wisconsin, where the order of the commissioner discharging the 
prisoner was affirmed. That judgment was then brought before 
the United States Supreme Court on a writ of error prosecuted by 
the United States.] 

Me. Justice Field, after stating the case, delivered the opinion 
of the court, as follows: — 

The important question is presented by this case, whether a 
State court commissioner has jurisdiction, upon habeas corpus, to 
inquire into the validity of the enlistment of soldiers into the mili- 
tary service of the United States, and to discharge them from such 
service when, in his judgment, their enlistment has not been made 
in conformity with the laws of the United States. The question 
presented may be more generally stated thus: Whether any judicial 
officer of a State has jurisdiction to issue a writ of habeas corpus, 
or to continue proceedings under the writ when issued, for the dis- 
charge of a person held under the authority, or claim and color of 
the authority, of the United States, by an officer of that govern- 
ment. For it is evident, if such jurisdiction may be exercised by 
any judicial officer of a State, it may be exercised by the court 
commissioner within the county for which he is appointed; and if 
it may be exercised with reference to soldiers detained in the mili- 
tary service of the United States, whose enlistment is alleged to 
have been illegally made, it may be exercised with reference to per- 
sons employed in any other department of the public service when 
their illegal detention is asserted. It may be exercised in all cases 
where parties are held under the authority of the United States, 
whenever the invalidity of the exercise of that authority is affirmed. 
The jurisdiction, if it exist at all, can only be limited in its appli- 
cation by the legislative power of the State. It may even reach 
to parties imprisoned under sentence of the National courts, after 
regular indictment, trial, and conviction, for offenses against the 
laws of the United States. As we read the opinion of the Supreme 
Court of "Wisconsin in this case, this is the claim of authority as- 
serted by that tribunal for itself and for the judicial officers of that 
State. It does, indeed, disclaim any right of either to interfere 
with parties in custody, under judicial sentence, when the National 
court pronouncing sentence had jurisdiction to try and punish the 
offenders, but it asserts, at the same time, for itself and for each of 



TARBLE'S CASE. 565 

those officers, the right to determine, upon habeas corpus, in all 
cases, whether that court ever had such jurisdiction. . . , 

It is evident, as said by this court when the case of Booth was 
finally brought before it, if the power asserted by that State court 
ever existed, no offense against the laws of the United States could 
be punished by their own tribunals, without the permission and 
according to the judgment of the courts of the State in which the 
parties happen to be imprisoned; that if that power existed in that 
State court, it belonged equally to every other State court in the 
Union where a prisoner was within its territorial limits; and, as 
the different State courts could. not always agree, it would often 
happen that an act, which was admitted to l)e an offense and justly 
punishable in one State, would be regarded as innocent and even 
praiseworthy in another, and no one could suppose that a govern- 
ment, which had hitherto lasted for seventy years, "enforcing its 
laws by its own tribunals, and preserving the union of the States, 
could have lasted a single year, or fulfilled the trusts committed 
to it, if offenses against its laws could not have been punished with- 
out the consent of the State in which the culprit was found." 
. . . [Here follows an. extended discussion of Ableman v. Booth 
and The United States v. Booth, 21 Howard, 506.] 

It is in the consideration of this distinct and independent char- 
acter of the government of the United States, from that of the 
government of the several States, that the solution of the question 
presented in this case, and in similar cases, must be found. There 
are within the territorial limits of each State two governments, re- 
stricted in their spheres of action, but independent of each other, 
and supreme within their respective spheres. Each has its sep- 
arate departments; each has its distinct laws, and each has its own 
tribunals for their enforcement. Neither government can intrude 
within the jurisdiction, or authorize any interference therein by 
its judicial officers with the action of the other. The two. gov- 
ernments in each State stand in their respective spheres of action 
in the same independent relation to each other, except in one par- 
ticular, that they would if their authority embraced distinct ter- 
ritories. That particular consists in the supremacy of the authority 
of the United States when any conflict arises between the two 
governments. The Constitution and the laws passed in pursuance 
of it, are declared by the Constitution itself to be the supreme law 
of the land, and the judges of every State are bound thereby, "any- 
thing in the constitution or laws of any State to the contrary not- 
withstanding." Whenever, therefore, any conflict arises between 
the enactments of the two sovereignties, or in the enforcement of 



566 CASES ON CONSTITUTIONAL LAW. 

their asserted authorities, those of the National government must 
have supremacy until the validity of the different enactments and 
authorities can be finally determined by the tribunals of the United 
States. This temporary supremacy until judicial decision by the 
National tribunals, and the ultimate determination of the confhct 
by such decision, are essential to the preservation of order and 
peace, and the avoidance of forcible collision between the two 
governments. "The Constitution," as said by Mr. Chief Justice 
Taney, "was not framed merely to guard the States against danger 
from abroad, but chiefly to secure union and harmony at home; 
and to accomplish this end it w&s deemed necessary, when the 
Constitution was framed, that many of the rights of sovereignty 
which the States then possessed should be ceded to the General 
government; and that in the sphere of action assigned to it, it 
should be supreme and strong enough to execute its own laws by 
its own tribunals, without interruption from a State, or from State 
authorities." And the judicial power conferred extends to all 
cases arising under the Constitution, and thus embraces every legis- 
lative act of Congress, whether passed in pursuance of it, or in 
disregard of its provisions. The Constitution is under the view 
of the tribunals of the United States when any act of Congress is 
brought before them for consideration. 

Such being the distinct and independent character of the two 
governments, within their respective spheres of action, it follows 
that neither can intrude with its judicial process into the domain 
of the other, exce^yt so far as such intrusion may be necessary on 
the part of the National government to preserve its rightful su- 
premacy in cases of conflict of authority. In their laws, and mode 
of enforcement, neither is responsible to the other. How their 
respective laws shall be enacted; how they shall be carried into 
execution; and in what tribunals, or by what officers; and how 
much discretion, or whether any at all shall be vested in their 
officers, are matters subject to their own control, and in the regula- 
tion of which neither can interfere with the other. 

Now, among the powers assigned to the National government, 
is the power "to raise and support armies," and the power "to 
provide for the government and regulation of the land and naval 
forces." The execution of these powers falls within the line of its 
duties; and its control over the subject is plenary and exclusive. 
It can determine, without question from any State authority, how 
the armies shall be raised, whether by voluntary enlistment or 
forced draft, the age at which the soldier shall be received, and 
the period for which he shall be taken, the compensation he shall 



TARBLE'S CASE. 567 

be allowed, and the service to which he shall be assigned. And it 
can provide the rules for the government and regulation of the 
forces after they are raised, define what shall constitute military 
offenses, and prescribe their punishment. ISTo interference with 
the execution of this power of the National government in the 
formation, organization, and government of its armies by any State 
officials could be permitted without greatly impairing the effi- 
ciency, if it did not utterly destroy, this branch of the public ser- 
vice. Probably in every county and city in the several States there 
are one or more officers authorized by law to issue writs of habeas 
corpus on behalf of persons alleged to be illegally restrained of 
their liberty; and if soldiers could be taken from the army of the 
United States, and the validity of their enlistment inquired into by. 
any one of these officers, such proceeding could be taken by all of 
them, and no movement could be made by the National troops 
without their commanders being subjected to constant annoyance 
and embarrassment from this source. The experience of the late 
rebellion has shown us, that, in times of great popular excitement, 
there may be found in every State large numbers ready and anxious 
to embarrass the operations of the government, and easily per- 
suaded to believe every step taken for the enforcement of its 
authority illegal and void. Power to issue writs of habeas corpus 
for the discharge of soldiers in the military service, in the hands 
of parties thus disposed, might be used, and often would be used, 
to the great detriment of the public service. In many exigencies 
the measures of the National government might in this way be 
entirely bereft of their efficacy and value. An appeal in such cases 
to this court, to correct the erroneous action of these officers, 
would afford no adequate remedy. Proceedings on habeas corpus 
are summary, and the delay incident to bringing the decision of a 
State officer, through the highest tribunal of the State, to this 
court for review would necessarily occupy years, and in the mean- 
time, where the soldier was discharged, the mischief would be ac- 
complished. It is manifest that the powers of the National govern- 
ment could not be exercised with energy and efficiency at all times, 
if its acts could be interfered wnth and controlled for any period by 
officers or tribunals of another sovereignty. 

It is true similar embarrassment might sometimes be occasioned, 
though in a less degree, by the exercise of the authority to issue 
the writ possessed by judicial officers of the United States, but the 
ability to provide a speedy remedy for any inconvenience following 
from this source would always exist with the National legislature. 

State judges and State courts, authorized by laws of their States 



568 CASES ON CONSTITUTIONAL LAW. 

to issue writs of habeas corpus, have undoubtedly a right to issue 
the writ in any case where a party is alleged to be illegally confined 
within their limits, unless it appear upon his application that he is 
confined under the authority, or claim and color of the authority, 
of the United States, by an officer of that government. If such 
fact appear upon the application the writ should be refused. If 
it do not appear, the judge or court issuing the writ has a right 
to inquire into the cause of imprisonment and ascertain by what 
authority the person is held within the limits of the State; 
and it is the duty of the marshal, or other officer having the 
custody of the prisoner, to give, by a proper return, information 
in this respect. His return should be sufficient, in its detail of 
facts, to show distinctly that the imprisonment is under the au- 
thority, or claim and color of the authority, of the United States, 
and to exclude the suspicion of imposition or oppression on his 
part. And the process or orders, under which the prisoner is held, 
should be produced with the return and submitted to inspection, 
in order that the court or judge issuing the writ may see that the 
prisoner is held by the officer, in good faith, under the authority 
or claim and color of the authority, of the United States, and not 
under the mere pretence of having such authority. 

This right to inquire by process of habeas corpus, and the duty 
of the officer to make a return, "grows necessarily," says Mr. Chief 
Justice Taney, "out of the complex character of our government 
and the existence of two distinct and separate sovereignties within 
the same territorial space, each of them restricted in its power, and 
each within its sphere of action, prescribed by the Constitution of 
the United States, independent of the other. But, after the re- 
turn is made, and the State judge or court judicially apprised that 
the party is in custody under the authority of the United States, 
they can proceed no further. They then know that the prisoner 
is within the dominion and jurisdiction of another government, 
and that neither the writ of habeas corpus nor any other process 
issued under State authority can pass over the line of division be- 
tween the two sovereignties. He is then within the dominion and 
exclusive jurisdiction of the United States. If he has committed 
an offense against their laws, their tribunals alone can punish him. 
If he is wrongfully imprisoned, their judicial tribunals can release 
him and afford him redress." 

Some attempt has been made in adjudications, to which our at- 
tention has been called, to limit the decision of this court in Able- 
man V. Booth, and The United States v. Booth, to cases where a 
prisoner is held in custody under undisputed lawful authority of 



TARBLE'S CASE. 569 

the United States, as distinguished from his imprisonment under 
claim and color of such authority. But it is evident that the deci- 
sion does not admit of any such limitation. It would have been 
unnecessary to enforce, by any extended reasoning, such as the 
Chief Justice uses, the position that when it appeared to. the judge 
or officer issuing the writ, that the prisoner was held under undis- 
puted lawful authority, he should proceed no further. No Federal 
judge even could, in such case, release the party from imprison- 
ment, except upon bail when that was allowable. The detention 
being by admitted lawful authority, no judge could set the pris- 
oner at liberty, except in that way, at any stage of the proceeding. 
All that is meant by the language used is, that the State judge or 
State court should proceed no further when it appears, from the 
application of the party, or the return made, that the prisoner is 
held by an officer of the United States under what, in truth, pur- 
ports to be the authority of the United States; that is, an author- 
it3% the validity of which is" to be determined by the Consitution 
and laws of the United States. If a party thus held be illegally 
imprisoned it is for the courts or judicial officers of the United 
States, and those courts or officers alone, to grant him release. 

This limitation upon the power of State tribunals and State 
officers furnishes no jusit ground to apprehend that the liberty of 
the citizen will thereby be endangered. The United States are as 
much interested in protecting the citizen from illegal restraint 
under their authority, as the several States are to protect him from 
the like restraint under their authority, and are no more likely to 
tolerate any oppression. Their courts and judicial officers are 
clothed with the power to issue the writ of habeas corpus in all 
cases, where a party is illegally restrained of his liberty by an officer 
of the United States, whether such illegality consist in the char- 
acter of the process, the authority of the officer, or the invalidity 
of the law under which he is held. And there is no just reason 
to believe that they will exhibit any hesitation to exert their power, 
when it is properly invoked. Certainly there can be no ground for 
supposing that their action will be less prompt and efficient in such 
cases than would be that of State tribunals and State officers.^ 

It follows, from the views we have expressed, that the court 
commissioner of Dane County was without jurisdiction to issue 
the writ of habeas corpus for the discharge of the prisoner in this 
ease, it appearing, upon the application presented to him for the 
writ, that the prisoner was held by an officer of the United States, 

1 In the matter of Severy, 4 Clifford. In the matter of Keeler, Hemp- 
stead, 306. 



570 CASES ON CONSTITUTIONAL LAW. 

under claim and color of the authority of the United States, as an 
enlisted soldier mustered into the militar}^ service of the National 
government; and the same information was imparted to the com- 
missioner by the return of the officer. The commissioner was, both 
by the application for the writ and the return to it, apprised that 
the prisoner was within the dominion and Jurisdiction of anoither 
government, and that no writ of habeas corpus issued by him could 
pass over the line which divided the two sovereignties. 

The conclusion we have reached renders it unnecessary to con- 
sider how far the declaration of the prisoner as to his age, in the 
oath of enlistment, is to be deemed conclusive evidence on that 
point on the return to the writ. Judgment reversed. 

The Chief Justice, dissenting. I cannot concur in the opinion 
just read. I have no doubt of the right of a State court to in- 
quire into the jurisdiction of a Federal court upon habeas corpus, 
and to discharge when satisfied that the petitioner for the writ is 
restrained of liberty by the sentence of a court without jurisdiction. 
If it errs in deciding the question of jurisdiction, the error must 
be corrected in the mode prescribed by the 25th section of the 
Judiciary Act; not by denial of the right to make inquiry. 

I have still less doubt, if possible, that a w^rit of habeas corpus 
may issue from a State court to inquire into the validity of im- 
prisonment or detention, without the sentence of any court what- 
ever, by an ofiicer of the United States. The State court may err; 
and if it does, the error may be corrected here. The mode has been 
prescribed and should be followed. 

To deny the right of State courts to issue the writ, or, what 
amounts to the same thing, to concede the right to issue and to 
deny the right to adjudicate, is to deny the right to protect the 
citizen by habeas corpus aga-inst arbitrary imprisonment in a large 
number of cases; and, I am thoroughly persuaded, was never 
within the contemplation of the Convention which framed, or the 
people who adopted, the Constitution. That instrument expressly 
declares that "the privilege of the writ of habeas corpus shall not 
be suspended, unless when, in case of rebellion or invasion, the 
public safety may require it." 



EX PARTE SIEBOLD. 671 

Ex Parte SIEBOLD. 
100 U. S., 371. Decided 1879. 

Petition for writ of habeas corpus. 

The facts are stated in the opinion of the court. . . . 

Mr. Justice Bradley delivered the opinion of the court. 

The petitioners in this case, Albert Siebold, Walter Tucker, 
Martin C. Burns, Lewis Coleman, and Henry Bowers, were judges 
of election at different voting precincts in the city of Baltimore, 
at the election held in that city, and in the State of Maryland, on 
the fifth day of November, 1878, at which representatives to the 
Forty-sixth Congress were voted for. 

At the November Term of the Circuit Court of the United States 
for the District of Maryland, an indictment against each of the 
petitioners was found in said court, for offenses alleged to have 
been committed by them respectively at their respective precincts 
whilst being judges of election; and upon which indictments they 
were severally tried, contacted, and sentenced by said court to fine 
and imprisonment. They now apply to this court for a writ of 
habeas corpus to be relieved from imprisonment. . . . 

These indictments were framed partly under Sect. 5515 and 
partly under Sect. 5522 of the Revised Statutes of the United 
States; and the principal questions raised by the application are, 
whether those sections, and certain sections of the title of the 
Revised Statutes relating to the elective franchise, which they are 
intended to enforce, are within the constitutional power of Con- 
gress to enact. If they are not, then it is contended that the Cir- 
cuit Court has no jurisdiction of the cases, and that the convic- 
tions and sentences of imprisonment of the several petitioners were 
illegal and void. . . . 

The peculiarity of the case caiisists in the concurrent authority 
of the two sovereignties. State and National, over the same sub- 
ject-matter. This, however, is not entirely without a parallel. The 
regulation of foreign and interstate commerce is conferred by the 
Constitution upon Congress. It is not expressly taken away from 
the States. But where the subject matter is one of a national char- 
acter, or one that requires a uniform rule, it has been held that 
the power of Congress is exclusive. On the contrary, where neither 
of these circumstances exist, it has been held that State regulations 
are not unconstitutional. In the absence of congressional regula- 
tion, which would be of paramount authority when adopted, they 



573 CASES ON CONSTITUTIONAL LAW. 

are valid and binding. . . . [Here follows a discussion of 
Cooley V. Board of "Wardens of Port of Philadelphia, 12 How- 
ard, 299.] 

So in the case of laws for regulating the elections of repre- 
sentatives to Congress. The State may make regulations on the 
subject; Congress may make regulations on the same subject, or 
may alter or add to those already made. The paramount character 
of those made by CongTess has the effect to supersede those made 
by the State, so far as the two are inconsistent, and no farther. 
There is no such coniiict between them as to prevent their form- 
ing a harmonious system perfectly capable of being administered 
and carried out as such. 

As to the supposed conflict that may arise between the ofl&cers 
appointed by the State and national governments for superintend- 
ing the election, no more insuperable difhculty need arise than in 
the application of the regulations adopted by each respectively. 
The regulations of Congress being constitutionally paramount, the 
•duties imposed thereby upon the officers of the United States, so 
far as they have respect to the same matters, must necessarily be 
paramount to those to be performed by the ofEicers of the State. 
If both cannot be performed, the latter are joro tanto superseded 
and cease to be duties. If the power of Congress over the subject 
is supervisory and paramount, as we have seen it to be, and if 
officers or agents are created for carr3-ing out its regulations, it 
follows as a necessary consequence that such officers and agents 
must have the requisite authority to act without obstruction or 
interference from the officers of the State. Xo greater subordina- 
tion, in kind or degree, exists in this case than in any other. It 
exists to the same extent between the different officers appointed 
by the State, when the State, alone regulates the election. One 
officer cannot interfere with the duties of another, or obstruct or 
hinder him in the performance of them. Where there is a disposi- 
tion to act harmoniously, there is no danger of disturbance be- 
tween those who have different duties to perform. Wlien the 
rightful authority of the general government is once conceded and 
acquiesced in, the ajDprehended difficulties will disappear. Let a 
spirit of national as well as local patriotism once prevail, let un- 
founded jealousies cease, and we shall hear no more about the 
impossibility of harmonious action between the national and State 
governments in a matter in which they have a mutual interest. 

As to the supposed incompatibility of independent sanctions 
and punishments imposed by the two governments, for the en- 
forcement of the duties required of the officers of election, and for 



EX PARTE SIBBOLD. 573 

their protection in the performance of those duties, the same con- 
siderations apjjly. While the State will retain the power of en- 
forcing such of its own regulations as are not superseded by those 
adopted by Congress, it cannot be disputed that if Congress has 
power to make regulations it must have the power to enforce them, 
not only by punishing the delinquency of officers appointed by the 
United States, but by restraining and punishing those who attempt 
to interfere with them in the performance of their duties; and if, 
as we have shown, Congress may revise existing regulations, and 
add to or alter the same as far as it deems expedient, there can be 
as little question that it may impose additional penalties for the 
prevention of frauds committed by the State officers in the elec- 
tions, or for their violation of any duty relating thereto, whether 
arising from the common law or from any other law, State or na- 
tional. Why not? Penalties for fraud and delinquency are part of 
the regulations belonging to the subject. If Congress, by its power 
to make or alter the regulations, has a general supervisory power j/^ 
over the whole subject, what is there to preclude it from imposing 
additional sanctions and penalties to prevent such fraud and de- 
linquency? 

It is objected that Congress has no power to enforce State laws 
or to punish State officers, and especially has no power to punish 
them for violating the laws of their own State. As a general propo- 
sition, this is undoubtedly true; but when, in the performance of 
their functions, State officers are called upon to fulfill duties which 
they owe to the United States as well as to the State, has the 
former no means of compelling such fulfilment? Yet that is the 
case here. It is the duty of the States to elect representatives to 
Congress. The due and fair election of these representatives is 
of vital importance to the United States. The government of the 
United States is no less concerned in the transaction than the State 
government is. It certainly is not bound to stand by as a passive 
spectator, when duties are violated and outrageous frauds are com- 
mitted. It is directly interested in the faithful performance, by 
the officers of election, of their respective duties. Those duties 
are owed as well to the United States as to the State. This neces- 
sarily follows from the mixed character of the transaction, State 
and national. A violation of duty is an offense against the United 
States, for w^hich the offender is justly amenable to that govern- 
ment. No official position can shelter him from this responsibility. 
In view of the fact that Congress has plenary and paramount juris- 
diction over the whole subject, it seems almost absurd to say that 
an officer who receives or has custody of the ballots given for a 



574 CASES ON CONSTITUTIONAL LAW. 

representative owes no duty to the national government wliicli 
Congress can enforce; or tliat an officer who stuffs the hallot-hox 
cannot be made amenable to the United States. If Congress has 
not;, prior to the passage of the present laws, imposed any penalties 
to prevent and punish frauds and violations of duty committed 
by officers of election, it has been because the exigency has not 
been deemed sufficient to require it, and not because Congress 
had' not the requisite power. 

The objection that the laws and regulations, the violation of 
which is made punishable by the acts of Congress, are State laws, 
and have not been adopted by Congress, is no sufficient answer 
to the power of Congress to impose punishment. It is true that 
Congress has not deemed it necessary to interfere with the duties 
of the ordinary officers of election, but has been content to leave 
them as prescribed by State laws. It has only created additional 
sanctions for their performance, and provided means of supervision 
in order more effectually to secure such performance. The im- 
position of punishment implies a prohibition of the act punished. 
The State laws which Congress sees no occasion to alter, but which 
it allows to stand, are in effect adopted by Congress. It simply V 
demands their fulfillment. Content to leave the laws as they are, 
it is not; content with the means provided for their enforcement. 
It provides additional means for that purpose; and we think it is 
entirely within its constitutional power to do so. It is simply the 
exercise of the power to make additional regulations. 

That the duties devolved on the officers of election are duties 
which they owe to the United States as well as to the State, is 
further evinced by the fact that they have always been so regarded 
by the House of Eepresentatives itself. In most cases of contested 
elections, the conduct of these officers is examined and scrutin- 
ized by that body as a matter of right; and their failure to per- 
form their duties is often made the ground of decision. Their 
conduct is justly regarded as subject to the fullest exposure; and 
the right to examine them personally, and to inspect all their 
proceedings and papers, has always been maintained. This could 
not be done, if the officers were amenable only to the supervision 
of the State government which appointed them. 

Another objection made is, that, if Congress can impose penal- 
ties for violation of State laws, the officer will be made liable to 
double punishment for delinquency, — at the suit of the State, 
J and at the suit of the United States. But the answer to this is, 
that each government punishes for violation of duty to itself 
only. "Where a person owes a duty to two sovereigns, he is amen- 



EX PARTE SIEBOLD. 575 

able to both for its performance; and either may call him to 
account. Whether punishment inflicted by one can be pleaded in 
bar to a charge by the other for the same identical act, need not 
now be decided; although considerable discussion bearing upon the 
subject has taken place in this court, tending to the conclusion 
that such a plea cannot be sustained. 

In reference to a conviction under a State law for passing coun- 
terfeit coin, which was sought to be reversed on the ground that 
Congress had jurisdiction over that subject, and might inflict 
punishment for the same ofl^ense, Mr. Justice Daniel, speaking for 
the court, said: "It is almost certain that, in the benignant 
spirit in which the institutions both of the State and Federal 
systems are administered, an ofl^ender who should have suffered 
the penalties denounced by the one would not be subjected a second 
time to punishment by the other for acts essentially the same, — ■ 
unless, indeed, this might occur in instances of peculiar enormity, 
or where the public safety demanded extraordinary rigor. But, 
were a contrary course of policy or action either probable or 
usual, this would by no means justify the conclusion that offenses 
falling within the competency of different authorities to restrain 
or punish them would not properly be subjected to the conse- 
quences which those authorities might ordain and affix to their 
perpetration." Fox v. The State of Ohio, 5 How., 410. The 
same judge, delivering the opinion of the court in the case of 
United States v. Marigold (9 How., 569) where a conviction was 
had under an act of Congress for bringing counterfeit coin into 
the country, said, in reference to Fox's Case: "With the view of 
avoiding conflict between the State and Federal jurisdictions, 
this court, in the case of Fox v. State of Ohio, have taken care 
to point out that the same act might, as to its character and 
tendencies, and the consequences it involved, constitute an offense 
against both the State and Federal governments, and might draw 
to its commission the penalties denounced by either, as appro- 
priate to its character in reference to each. We hold this dis- 
tinction sound;" and the conviction was sustained. The subject 
came up again for discussion in the case of Moore v. State of 
Illinois (1-i id., 13), in which the plaintiff in error had been con- 
victed under a State law for harboring and secreting a negro 
slave, which was contended to be properly an offense against the 
United States under the fugitive-slave law of 1793, and not an 
offense against the State. The objection of double punishment 
was again raised. Mr. Justice Grier, for the court, said: "Every 
citizen of the United States is also a citizen of a State or a Ter- 



576 CASES ON CONSTITUTIONAL LAW. 

ritory. He may be said to owe allegiance to two sovereigns, and 
may be liable to punishment for an infraction of the laws of either. 
The same act may be an offense or transgression of the laws of 
both." Substantially the same views are expressed in United States 
V. Cruikshank (92 U. S., 543), referring to these cases; and we 
do not well see how the doctrine they contain can be contro- 
verted. A variety of instances may be readily suggested, in which 
it would be necessary or proper to apply it. Suppose, for example, 
a State judge having power under the naturalization laws to admit 
aliens to citizenship should utter false certificates of naturaliza- 
tion, can it be doubted that he could be indicted under the act 
of Congress providing penalties for that offense, even though he 
might also, under the State laws, be indictable for forgery, as 
well as liable to impeachment ? So, if Congress, as it might, should 
pass a law fixing the standard of weights and measures, and im- 
posing a penalty for sealing false weights and false measures, 
but leaving to the States the matter of inspecting and sealing 
those used by the people, would not an offender, filling the office 
of sealer under a State law, be amenable to the United States as 
well as to the State? 

If the 'oifiicers of election, in elections for representatives, owe 
a duty to the United States, and are amenable to that government 
as well as to the State, — as we think they are, — then, according 
to the cases just cited, there is no reason why each should not 
establish sanctions for the performance of the duty owed to itself, 
though referring to the same act. 

To maintain the contrary proposition, the case of Common- 
wealth of Kentucky v. Dennison (24 How., 66) is confidently relied 
on by the petitioners' counsel. But there. Congress had imposed 
a duty upon the governor of the State which it had no authority 
to impose. The enforcement of the clause in the Constitution 
requiring the delivery of fugitives from service was held to belong 
to the government of the United States, to be effected by its own 
agents; and Congress had no authority to require the governor 
of a State to execute this duty. 

"We have thus gone over the principal reasons of a special char- 
acter relied on by the petitioners for maintaining the general 
proposition for which they contend; namely, that in the regula- 
tion of elections for representatives the national and State gov- 
ernments cannot co-operate, but must act exclusively of each 
other; so that, if Congress assumes to regulate the subject at all, 
it must assume exclusive control of the whole subject. The more 
general reason assigned, to wit. that the nature of sovereignty 



EX PARTE SIEBOLD. 577 

is such as to precliule the joint co-operation of two sovereigns, even 
in a matter in which they are mutually concerned, is not, in our 
judgment, of sufficient force to prevent concurrent and harmonious 
action on the part of the national and State governments in the 
election of representatives. It is at most an argument ab incon- 
veniente. There is nothing in the Constitution to forbid such co- 
operation in this case. On the contrary, as already said, we think 
it clear that the clause of the Constitution relating to the regula- 
tion of such elections contemplates such co-operation whenever 
Congress deems it expedient to interfere merely to alter or add 
to existing regulations of the State. If the two governments had 
an entire equality of jurisdiction, there might be an intrinsic dif- 
ficulty in such co-operation. Then the adoption by the State 
government of a system of regulations might exclude the action 
of Congress. By first taking jurisdiction of the subject, the State 
would acquire exclusive jurisdiction in virtue of a well-known 
principle applicable to courts having co-ordinate jurisdiction over 
the same matter. But no such equality exists in the jiresent case. 
The power of Congress, as we have seen, is paramount, and 
may be exercised at any time, and to any extent which it deems 
expedient; and so far as it is exercised, and no farther, the regu- 
lations effected supersede those of the State which are incon- 
sistent therewith. 

As a general rule, it is no doubt expedient and wise that the 
operations of the State and national governments should, as far 
as practicable, be conducted separately, in order to avoid undue 
jealousies and jars and conflicts of jurisdiction and power. But 
there is no reason for laying this down as a rule of universal ap- 
plication. It should never be made to override the plain and 
manifest dictates of the Constitution itself. We cannot yield to 
such a transcendental view of State sovereignty. The Constitu- 
tion and laws of the United States are the supreme laws of the 
land, and to these every citizen of every State owes obedience, 
whether in his individual or official capacity. There are very 
few subjects, it is true, in which our system of government, com- 
plicated as it is, requires or gives room for conjoint action between 
the State and national sovereignties. Generally, the powers given 
by the Constitution to the government of the United States are 
given over distinct branches of sovereignty from which the State 
governments, either expressly or by necessary implication, are ex- 
cluded. But in this case, expressly, and in some others, by im- 
plication, as we have seen in the case of pilotage, a concurrent 
jurisdiction is contemplated, that of the State, however, being 
37 



578 CASES ON CONSTITUTIONAL LAW. 

sub ordinate to that of the United States, wliereby all questions of 
precedency is eliminated. 

in what we have said, it must be remembered that we are deal- 
ing only with the subject of elections of representatives to Con- 
gress. If for its own convenience a State sees fit to elect State 
and county officers at the same time and in conjunction with the 
election of representatives, Congress will not be thereby deprived 
of the right to make regulations in reference to the latter. We 
do not mean to say, however, that for any acts of the officers of 
election, having exclusive reference to the election of State or 
county officers, they will be amenable to Federal jurisdiction; nor 
do we understand that the enactments of Congress now under 
consideration have any application to such acts. 

It must also be remembered that we are dealing with the ques- 
tion of power, not of the expediency of any regulations which 
Congress has made. That is not within the pale of our jurisdic- 
tion. In exercising the power, however, we are bound to presume 
that Congress has done so in a judicious manner; that it has 
endeavored to guard as far as possible against any unnecessary 
interference with State laws and regulations, with the duties of 
State officers, or with local prejudices. It could not act at all 
so as to accomplish any beneficial object in preventing frauds and 
violence, and securing the faithful performance of duty at the 
elections, without providing for the presence of officers and agents 
to carry its regulations into effect. It is also difficult to see how 
it could attain these objects without imposing proper sanctions 
and penalties against offenders. 

The views we have expressed seem to us to be founded on such 
plain and practical principles as hardly to need any labored argu- 
ment in their support. We may mystify anything. But if we 
take a plain view of the words of the Constitution, and give to 
them a fair and obvious interpretation, we cannot fail in most 
cases of coming to a clear understanding of its meaning. We shall 
not have far to seek. We shall find it on the surface, and not 
in the profound depths of speculation. 

The greatest difficulty in coming to a just conclusion arises 
from mistaken notions with regard to the relations which sub- 
sist between the State and national governments. It seems to be 
often overlooked that a national constitution has been adopted in 
this countr}^, establishing a real government therein, operating 
upon persons and territory and things; and which, moreover, is, 
or should be, as dear to every American citizen as his State gov- 
ernment is. Wlienever the true conception of the nature of this 



EX PARTE SIEBOLD. 579 

govermnent is once conceded, no real difficulty will arise in the 
just interpretation of its powers. But if we allow ourselves to 
regard it as a hostile organization, opposed to the proper sov- 
ereignty and dignity of the State governments, we shall continue 
to be vexed with difficulties as to its Jurisdiction and authority. 
JSTo greater jealousy is required to be exercised towards this gov- 
ernment in reference to the preservation of our liberties, than is 
proper to be exercised towards the State governments. Its powers 
are limited in number, and clearly defined; and its action within 
the scope of those powers is restrained by a sufficiently rigid bill 
of rights for the protection of its citizens from oppression. The 
true interest of the people of this country requires that both the 
national and State governments should be allowed, without jealous 
interference on either side, to exercise all the powers which re- 
spectively belong fo them according to a fair and practical con- 
struction of the Constitution. State rights and the rights of the 
United States should be equally respected. Both are essential 
to the preservation of our liberties and the perpetuity of our 
institutions. But in endeavoring to vindicate the one, we should 
not allow our zeal to nullify or impair the other. 

Several other questions bearing upon the present controversy 
have been raised by the counsel of the petitioners. Somewhat akin 
to the argument which has been considered is the objection that 
the deputy marshals authorized by the act of Congress to be created 
and to attend the elections are authorized to keep the peace; and 
that this is a duty which belongs to the State authorities alone. 
It is argued that the preservation of peace and good order in so- 
ciety is not within the powers confided to the government of the 
United States, but belongs exclusively to the States. Here again 
we are met with the theory that the government of the United 
States does not rest upon the soil and territory of the country. 
We think that this theory is founded on an entire misconception 
of the nature and powers of that government. We hold it to be 
an incoiTtrovertible principle, that the government of the United 
States may, by means of physical force, exercised through its 
official agents, execute on every foot of American soil the powers 
and functions that belong to it. This necessarily involves the 
power to command obedience to its laws, and hence the power 
to keep the peace to that extent. 

This power to enforce its laws and to execute its functions 
in all places does not derogate from the powers of the State to 
execute its laws at the same time and in the same places. The 
one does not exclude the other, except where both cannot be 



580 CASES ON CONSTITUTIONAL LAW. 

executed at the same time. In that case, the -words of the Con- 
stitution itself show which is to yield. "This Constitution, and 
all laws which shall be made in pursuance thereof, . . . shall 
be the supreme law of the land." 

This concurrent jurisdiction which the national government 
necessarily possesses to exercise its powers of sovereignty in all 
parts of the United States is distinct from that exclusive power 
which, by the first article of the Constitution, it is authorized to 
exercise over the District of Columbia, and over those places within 
a State which are purchased by consent of the legislature thereof, 
for the erection of forts, magazines, arsenals, dock-yards, and other 
needful buildings. There its jurisdiction is absolutely exclusive 
of that of the State, unless, as is sometimes stipulated, power is 
given to the latter to serve the ordinary process of its courts in 
the precinct acquired. 

"Without the concurrent sovereignty referred to, the national 
government would be nothing but an advisory government. Its 
executive power would be absolutely nullified. 

Why do we have marshals at all, if the}'' cannot physically lay 
their hands on persons and things in the performance of their 
proper duties? Wliat func-tions can they perform, if they cannot 
use force? In executing the processes of the courts, must thoy 
call on the nearest constable for protection? Must they rely on 
him to use the requisite compulsion, and to keep the peace whilst 
tbey are soliciting and entreating the parties and bystanders to 
allow the law to take its course? This is the necessary conse- 
quence of the positions that are assumed. If we indulge in such 
impracticable views as these, and keejD on refining and re-refining, 
we shall drive the national government out of the United States, 
and relegate it to the District of Columbia, or perhaps to some 
foreign soil. We shall bring it back to a condition of greater help- 
lessness than that of the old confederation. 

The argument is based on a strained and impracticable view of 
the nature and powers of the national government. It must exe- 
cute its powers, or it is no government. It must execute them 
on the land as well as on the sea, on things as well as on persons. 
And, to do tliis, it must necessarily have power to command obedi- 
ence, preserve order, and keep the peace; and no person or power 
in this land has the right to resist or question its authority, so 
long as it keeps within the bounds of its jurisdiction. Without 
specifying other instances in which this power to preserve order 
and keep the peace unquestionably exists, take the very ease in 
hand. The counsel for the petitioners concede that Congress may, 



EX PARTE SIEBOLD. 581 

if it sees fit, assume the entire control and regulation of the elec- 
tion of representatives. This would necessarily involve the ap- 
pointment of the places for holding the polls, the times of voting, 
and the officers for holding the election; it would require the regu- 
lation of the duties to be performed, the custody of the ballots, the 
mode of ascertaining the result, and every other matter relating 
to the subject. Is it possible that Congress could not, in that 
case, provide for keeping the peace at such elections, and for ar- 
resting and punishing those guilty of breaking it? If it could 
not, its power would be but a shadow and a name. But, if Con- 
gress can do this, where is the difference in principle in its making 
provision for securing the preservation of the peace, so as to give 
to every citizen his free right to vote without molestation or 
injury, when it assumes only to supervise the regulations made 
by the State, and not to supersede them entirely? In our judg- 
ment, there is no difference; and, if the power exists in the one 
case, it exists in the other. 

The next point raised is, that the act of Congress proposes to 
operate on officers or persons authorized by State laws to perform 
certain duties under them, and to require them to disobey and dis- 
regard State laws when they come in conflict with the act of 
Congress; that it thereby of necessity produces collision, and is 
therefore void. This point has been already fully considered. "We 
have shown, as we think, that, where the regulations of Congress 
conflict with those of the State, it is the latter which are void, and 
not the regulations of Congress; and that the laws of the State, 
in so far as they are inconsistent with the laws of Congress on 
the same subject, cease to have effect as laws. . . . 

The doctrine laid down at the close of counsel's brief, that the 
State and national governments are co-ordinate and altogether 
equal, on which their whole argument, indeed, is based, is only 
partially true. 

The true doctrine, as we conceive, is this, that whilst the States 
are really sovereign as to all matters which have not been granted 
to the jurisdiction and control of the United States, the Consti- 
tution and constitutional laws of the latter are, as we have already 
said, the supreme law of the land; and, when they conflict with 
the laws of the States, they are of paramount authority and obli- 
gation. This is the fundamental principle on which the author- 
ity of the Constitution is based; aud unless it be conceded in prac- 
tice, as well as theory, the fabric of our institutions, as it was con- 
templated by its founders, cannot stand. The questions involved 
have respect not more to the autonomy and existence of the States, 



582 CASES ON CONSTITUTIONAL LAW. 

than to the continued existence of the United States as a govern- 
ment to which every American citizen may look for security and 
protection in every part of the land. 

We think that the cause of commitment in these cases was law- 
ful, and that the application for the writ of haheas corpus must 

be denied. 

Application denied. 

Me. Justice Cliffoed and Me. Justice Field dissented. 



XIII. INTERNATIONAL RELATIONS.— INDIAN AF- 
FAIRS 



lu The American InsueajSTCE Company v. Caxtee, 1 Peters, 
511 (1828), Chief Justice Maeshall said: 

"The course which the argument has taken, will require that, 
in deciding this question, the court should take into view the 
relation in which Florida stands to the United States. 

"The constitution confers absolutely on the government of the 
Union the powers of making war and of making treaties; conse- 
quently, that government possesses the power of acquiring terri- 
tory, either by conquest or by treaty. 

"The usage of the world is, if a nation be not entirely subdued, 
to consider the holding of conquered territory as a mere military 
occupation, until its fate shall be determined at the treaty of 
peace. If it be ceded by the treaty, the acquisition is confirmed, 
and the ceded territory becomes a part of the nation to which it is 
annexed, either on the terms stipulated in the treaty of cession, or 
on such as its new master shall impose. On such transfer of terri- 
tory, it has never been held that the relations of the inhabitants 
with each other undergo any change. Their relations with their 
former sovereign are dissolved, and new relations are created be- 
tween them and the government which has acquired their terri- 
tory. The same act which transfers their country, transfers the 
allegiance of those who remain in it; and the law, which may be 
denominated political, is necessarily changed, although that which 
regulates the intercourse and general conduct of individuals, re- 
mains in force until altered by the newly created power of the 
state. 

"On the 2d of February, 1819, Spain ceded Florida to the United 
States. The 6th article of the treaty of cession,^ contains the fol- 
lowing provision: "The inhabitants of the territories which his 
Catholic Majesty cedes to the United States by this treaty, shall 
be incorporated in the Union of the United States, as soon as may 

1 8 Stats, at Large, 252. 
583 



684 CASES ON CONSTITUTIONAL LAW. 

be consistent with, the iDiinciijles of the federal constitution, and 
admitted to the enjojonent of the privileges, rights, and immnnities 
of the citizens of the ITnited States." 

"This treaty is the law of the land, and admits the inhabitants 
of Florida to the enjoyment of the privileges, rights, and immu- 
nities of the citizens of the ITnited States. It is unnecessary to 
inquire whether this is not their condition, independent of stipu- 
lation. They do not, however, participate in political power; they 
do not share in the government till Florida shall become a State. 
In the meantime, Florida continues to be a territory of the United 
States, governed by virtue of that clause in the constitution which 
empowers congress "to make all needful rules and regulations re- 
specting the territory or other property beloncring to the United 
States." 

'"Perhaps the power of governing a territory belonging to the 
United States, which has not, by becoming a State, acquired the 
means of self-government, may result necessarily from the facts 
that it is not within the jurisdiction of any particular State, and 
is within the power and jurisdiction of the United States. The 
right to govern may be the inevitable consec^uence of the right to 
acquire territory. Whichever may be the source whence the power 
is derived, the possession of it is unquestioned. In execution of it, 
congress, in 1822, passed "an act for the establishment of a terri- 
torial government in Florida,"- and on the 3d of March, 1823, 
passed another act to amend the act of 1822. Under this act, 
the territorial legislature enacted the law now under consideration. 



THE CHEEOKEE XATIOX t. THE STATE OF GEOEGIA. 
5 Peters, 1. Decided 1S31. 

This was an original bill filed in this court by the Cherokee 
ISTation against the State of Georgia, and also a supplemental bill 
by the same complainant against the same defendant, upon which 
the complainant moved for a subpoena to the State, and also for 
a temporary injunction to restrain the Stat:e from enforcing the 
laws of Georgia within the territory alleged to belong exclusively 
to the complainants. As the decision of the court rested solely on 
the ground of want of jurisdiction, it is not deemed necessary to 

2 3 Stats, at Large, 654. 



CHEROKEE NATION v. GEORGIA. 585 

state the contents of the bills, any further than they bear on 
that question. 

The bill set forth the complainants to be ''the Cherokee Nation 
of Indians, a foreign state, not owing allegiance to the United 
States, nor to any State of this Union, nor to any prince, poten- 
tate, or state, other than their own." 

''That from time immemorial, the Cherokee Nation have com- 
posed a sovereign and independent state, and in this character have 
been repeatedly recognized, and still stand recognized, by the 
United States, in the various treaties subsisting between their 
nation and the United States." And it proceeds to state when 
these were made, and their substance, and shows how certain laws 
of Georgia are repugnant thereto. 

On the day appointed for the hearing, the counsel for the com- 
plainants filed a supplemental bill, which states that since their 
bill, now submitted, was drawn, acts, demonstrative of the deter- 
mination of the State of Georgia to enforce her assumed authority 
over the complainants and their territory, p)roperty, and Jurisdic- 
tion, have taken place, and it sets out those acts. . . . 

Xo counsel appeared for the State of Georgia. 

Maksiiall, C. J., delivered the opinion of the court. 

This bill is brought by the Cherokee nation, praying an injunc- 
tion to restrain the State of Georgia from the execution of certain 
laws of that State, which, as is alleged, go directly to annihilate the 
Cherokees as a political society, and to seize, for the use of Georgia, 
the lands of the nation which have been assured to them by the 
United States in solemn treaties repeatedly made and still in 
force. . . . 

Before w^e can look into the merits of the case, a preliminary in- 
quiry presents itself. Has this court Jurisdiction of the cause? 

The 3d article of the constitution describes the extent of the 
Judicial power. The 2d section closes an enumeration of the cases 
to which it is extended, with "controversies" "between a State or 
the citizens thereof and foreign states, citizens, or subjects." A 
subsequent clause of the same section gives the supreme court orig- 
inal Jurisdiction in all cases in which a State shall be a party. 
The party defendant may, then, unquestionably be sued in this 
court. May the plaintiff sue in it? Is the Cherokee nation a for- 
eign state in the sense in which that term is used in the consti- 
tution? 

The counsel for the plaintiffs have maintained the affirmative 
of this proposition with great earnestness and ability. So much 



586 CASES ON CONSTITUTIONAL LAW. 

of the argument as was intended to prove the character of the Cher- 
okees as a state, as a distinct political society, separated from 
others, capable of managing its own affairs and governing itself, 
has, in the opinion of a majority of the judges, been completely 
successful. They have been uniformly treated as a state from the 
settlement of our country. The numerous treaties made by them 
with the United States recognize them as a people capable of 
maintaining the relations of peace and war, of being responsible in 
their political character for any violation of their engagements, or 
for any aggression committed on the citizens of the United States 
by any individual of their community. Laws have been enacted 
in the spirit of these treaties. The acts of our government plainly 
recognize the Cherokee nation as a state, and the courts are bound 
by those acts. 

A question of much more difficulty remains. Do the Cherokees 
constitute a foreign state in the sense of the constitution? 

The counsel have shown conclusively that they are not a State 
of the Union, and have insisted that individually they are aliens, 
not owing allegiance to the United States. An aggregate of aliens 
composing a state must, they say, be a foreign state. Each indi- 
vidual being foreign, the whole must be foreign. 

This argument is imposing, but we must examine it more closely 
before we yield to it. The condition of the Indians in relation to 
the United States is perhaps unlike that of any other two people in 
existence. In the general, nations not owing a common allegiance 
are foreign to each other. The term foreign nation is, with strict 
propriety, applicable by either to the other. But the relation of 
the Indians to the United States is marked by peculiar and cardinal 
distinctions which exist nowhere else. 

The Indian territory is admitted to form a part of the United 
States. In all our maps, geographical treatises, histories, and laws, 
it is so considered. In all our intercourse with foreign nations, in 
our commercial regulations, in any attempt at intercourse between 
Indians and foreign nations, they are considered as within the juris- 
dictional limits of the United States, subject to many of those re- 
straints which are imposed upon our own citizens. They acknowl- 
edge themselves in their treaties to be under the protection of the 
United States; they admit that the United States shall have the 
sole and exclusive right of regulating the trade with them, and 
managing all their affairs as they think proper; and the Chero- 
kees in particular were allowed by the treaty of Hopewell,^ which 
preceded the constitution, "to send a deputy of their choice, when- 
1 7 Statutes at Large, 18. 



CHEROKEE NATION V. GEORGIA. 587 

ever they think proper, to congress." Treaties were made with 
some tribes by the State of New York, under a then unsettled 
construction of the confederation, by which they ceded all their 
lands to that State, taking back a limited grant to themselves, in 
which they admit their dependence. 

Though the Indians are acknowledged to have an unquestionable 
and, therefore, unquestioned right to the land they occupy, until 
that right shall be extinguished by a voluntary cession to our gov- 
ernment; yet it may be doubted whether those tribes which reside 
within the acknowledged boundaries of the United States can, with 
strict accuracy, be denominated foreign nations. They may, more 
correctly, perhaps, be denominated domestic dependent nations. 
They occupy a territory to which we assert a title independent of 
their will, which must take effect in point of possession when their 
right of possession ceases. Meanwhile they are in a state of pupil- 
age. Their relation to the United States resembles that of a ward 
to his guardian. 

They look to our government for protection; rely upon its kind- 
ness and its power; appeal to it for relief to their wants; and ad- 
dress the President as their great father. They and their country 
are considered by foreign nations, as well as by ourselves, as being 
so completely under the sovereignty of the United States, that any 
attempt to acquire their lands, or to form a political connection 
with them, would be considered by all as an invasion of our terri- 
tory, and an act of hostility. 

These considerations go far to support the opinion that the 
framers of our constitution had not the Indian tribes in view, when 
they opened the courts of the Union to controversies between a 
State or the citizens thereof and foreign states. 

In considering this subject, the habits and usages of the Indians, 
in their intercourse with their white neighbors, ought not to be 
entirely disregarded. At the time the constitution was framed, 
the idea of appealing to an American court of justice for an asser- 
tion of right or a redress of wrong, had, perhaps, never entered the 
mind of an Indian or his tribe. Their appeal was to the tomahawk, 
or to the government. This was well understood by the statesmen 
who framed the constitution of the United States, and might fur- 
nish some reason for omitting to enumerate them among the par- 
ties who might sue in the courts of the Union. Be this as it may, 
the peculiar relations between the United States and the Indians 
occupying our territory are such, that we should feel much difficulty 
in considering them as designated by the term foreign state, were 
there no other part of the constitution which might shed light on 



588 CASES ON CONSTITUTIONAL LAW. 

the meaning of these voids. But vre think that in construing 
them, considerahle aid is furnished by that clause in the 8th sec- 
tion of the 1st article, Tvhich empowers congress to "regulate com- 
merce with foreign nations, and among the several States, and with 
the Indian tribes." 

In this clause they are as clearly contradistinguished by a name 
appropriate to themselves, from foreign nations, as from the sev- 
eral States composing the Union. They are designated by a distinct 
appellation; and as this appellation can be applied to neither of 
the others, neither can the appellation distinguishing either of the 
others be in fair construction applied to them. The objects, to 
which the power of regulating commerce might be directed, are 
divided into three distinct classes — foreign nations, the several 
States, and Indian tribes. "When forming this article, the conven- 
tion considered them as entirely distinct. "We cannot assume that 
the distinction was lost in framing a subsequent article, unless 
there be something in its language to authorize the assumption. 

The counsel for the plaintiffs contend that the words "Indian 
tribes" were introduced into the article empowering congress to 
regulate commerce, for the purpose of removing those doubts in 
which the management of Indian affairs was involved by the lan- 
guage of the 9th article of the confederation. Intending to give 
the whole power of managing those affairs to the government about 
to be instituted, the convention conferred it explicitly, and omitted 
those qualifications which embarrassed the exercise of it as granted 
in the confederation. This may be admitted without weakening 
the construction which has been intimated. Had the Indian tribes 
been foreign nations, in the view of the convention, this exclusive 
power of regulating intercourse with them might have been, and 
most probably would have been, specifically given, in language 
indicating that idea, not in language contradistinguishing them 
from foreign nations. Congress might have been empowered "to 
regulate commerce with foreign nations, including the Indian 
tribes, and among the several States." This language would have 
suggested itself to statesmen who considered the Indian tribes as 
foreign nations, and were yet desirous of mentioning them par- 
ticularly. 

It has also been said that the same words have not necessarily 
the same meaning attached to them when found in different parts 
of the same instrument; their meaning is controlled by the con- 
text. This is undoubtedly true. In common language, the same 
word has various meanings, and the peculiar sense in which it is 
used in anv sentence is to be determined bv the context. This may 



CHEROKEE NATION v. GEORGIA. 589 

not be equally true with respect to proper names. Foreign na- 
tions, is a general term, the application of which to Indian tribes, 
when used in the American constitution, is at best extremely 
questionable. In one article, in which a power is given to be 
exercised in regard to foreign nations generally, and to the Indian 
tribes particularly, they are mentioned as separate in terms clearly 
contradistinguishing them from each other. We perceive plainly 
that the constitution, in this article, does not comprehend Indian 
tribes in the general term ''foreign nations;" not, we presume, be- 
cause a tribe may not be a nation, but because it is not foreign to 
the United States. When, afterwards, the term "foreign states" 
is introduced, we cannot imjJute to the convention the intention 
to desert its former meaning, and to comprehend Indian tribes 
within it, unless the context force that construction upon us. We 
find nothing in the context, and nothing in the subject of the arti- 
cle, which leads to it. 

The court has bestowed its best attention on this question, and, 
after mature deliberation, the majority is of opinion that an Indian 
tribe or nation within the United States is not a foreign state, in 
the sense of the constitution, and cannot maintain an action in the 
courts of the United States. 

A serious additional objection exists to the jurisdiction of the 
court. Is the matter of the bill the proper subject for judicial 
inquiry and decision? It seeks to restrain a State from the forcible 
exercise of legislative power over a neighboring people, asserting 
their independence; their right to which the State denies. On 
several of the matters alleged in the bill, for example on the laws 
making it criminal to exercise the usual powers of self-government 
in their own country by the Cherokee nation, this court cannot 
interpose; at least in the form in which those matters are pre- 
sented. 

That part of the bill which respects the land occupied by the 
Indians, and prays the aid of the court to protect their possession, 
may be more doubtful. The mere question of right might, 
perhaps, be decided by this court in a proper case with proper 
parties. But the court is asked to do more than decide on the title. 
The bill requires us to control the legislature of Georgia, and to 
restrain the exertion of its physical force. The propriety of such 
an interposition by the court may be well questioned. It savors 
too much of the exercise of political power to be within the proper 
province of the judicial department. But the opinion on the point 
respecting parties, makes it unnecessary to decide this question. 

If it be true that the Cherokee nation have rights, this is not 



590 CASES ON CONSTITUTIONAL LAW. 

the tribunal in which those rights are to be asserted. If it be true 
that wrongs have been inflicted, and that still greater are to be 
apprehended, this is not the tribunal which can redress the past 
or prevent the future. 

The motion for an injunction is denied. 

[Justices Johnson and Baldwin delivered long concurring 
opinions. Justice Thompson delivered a dissenting opinion, in 
Avhich Justice Stoky concurred.] 

XoTE. — "The political importance of the Cherokee case lay in 
the fact that its result was the first successful nullification, in its 
modern sense, of the laws of the United States." Alexander John- 
ston in Lalor's Cyclopedia, I, 39i. 



WOECESTEE v. THE STATE OF GEOEGIA. 
6 Peters, 515. Decided 1832. 

Error to the superior court for the county of Gwinnett in the 
State of Georgia. , . . [The plaintiii in error, a missionary 
from Vermont, residing within the limits of the Cherokee nation 
by permission of the United States, was arrested and sentenced to 
imprisonment under a law of the State of Georgia forbidding such 
residence without a license from the State.] 

Maeshall, C. J., delivered the opinion of the court. 

This cause, in every point of view in which it can be placed, is 
of the deepest interest. 

The defendant is a State, a member of the Union, which has 
exercised the powers of government over a people, who deny its 
jurisdiction, and are under the protection of the United States. 

The plaintiff is a citizen of the State of Vermont, condemned to 
hard labor for four years in the penitentiary of Georgia under color 
of an act which he alleges to be repugnant to the constitution, laws 
and treaties of the United States. 

The legislative power of a State, the controlling power of the 
constitution and laws of the United States, the rights, if they have 
any, the political existence of a once numerous and powerful people, 
the personal liberty of a citizen, are all involved in the subject now 
to be considered. . . . [The first part of the opinion consists 



WORCESTER v. GEORGIA. 591 

of a consideration of the jurisdiction of tlie court and a discussion 
of the relations of the Indian tribes with the governments of Great 
Britain, the Colonies and the United States.] 

The treaties and laws of the United States contemplate the In- 
dian territory as completely separated from that of the States; and 
provide that all intercourse with them shall be carried on ex- 
clusively by the government of the Union. 

Is this the rightful exercise of power, or is it usurpation? 

While these States were colonies, this power, in its utmost ex- 
tent, was admitted to reside in the crown. When our revolutionary 
struggle commenced, congress was composed of an assemblage of 
deputies acting under specific powers granted by the legislatures, 
or conventions of the several colonies. It was a great popular 
movement, not perfectly organized; nor were the respective pow- 
ers of those who were intrusted with the management of affairs 
accurately defined. The necessities of our situation produced a 
general conviction that those measures which concerned all must 
be transacted by a body in which the representatives of all were 
assembled, and which could command the confidence of all: con- 
gress, therefore, was considered as invested with all the powers of 
war and peace, and congress dissolved our connection with the 
mother country, and declared these united colonies to be independ- 
ent States. Without any written definition of powers, they em- 
ployed diplomatic agents to represent the United States at the 
several courts of Europe; offered to negotiate treaties with them, 
and did actually negotiate treaties with France. From the same 
necessity, and on the same principles, congress assumed the man- 
agement of Indian affairs; first in the name of these united col- 
onies; and, afterwards, in the name of the United States. Early 
attempts were made at negotiation, and to regulate trade with 
them. These not proving successful, war was carried on under 
the direction, and with the forces of the United States, and the 
efforts to make peace, by treaty, were earnest and incessant. The 
confederation found congress in the exercise of the same powers 
of peace and war, in our relations with Indian nations, as with 
those of Europe. 

Such was the state of things when the confederation was adopted. 
That instrument surrendered the powers of peace and war to con- 
gress, and prohibited them to the States, respectively, unless a State 
be actually invaded, "or shall have received certain advice of a 
resolution being formed by some nation of Indians to invade such 
State, and the danger is so imminent as not to admit of delay till 
the United States in congress assembled can be consulted." This 



592 CASES ON CONSTITUTIONAL LAW. 

instrument also gave tlie United States in congress assembled the 
sole and exclusive right of "regulating the trade and managing all 
the affairs with the Indians^ not members of any of the States: 
proTided, that the legislatiye power of any State within its own 
limits be not infringed or violated." 

The ambiguous phrases which follow the grant of power to the 
United States were so construed by the States of ]^orth Carolina 
and Georgia as to annul the power itself. The discontents and 
confusion resulting from these conflicting claims, produced repre- 
sentations to congress, which were referred to a committee, who 
made their report in 1787. The report does not assent to the con- 
struction of the two States, but recommends an accommodation, 
by liberal cessions of territory, or by an admission, on their part, 
of the powers claimed by congress. The correct exposition of this 
article is rendered unnecessary by the adoption of our existing 
constitution. That instrument confers on congress the powers of 
war and peace; of making treaties, and of regulating commerce 
with foreign nations, and among the several States, and with the 
Indian tribes. These powers comprehend all that is required for 
the regulation of our intercourse with the Indians, They are not 
limited by any restrictions on their free actions. The shackles im- 
posed on this power, in the confederation, are discarded. 

The Indian nations had always been considered as distinct, in- 
dependent political communities, retaining their original natural 
rights, as the undisputed possessors of the soil, from time im- 
memorial, with the single exception of that imposed by irresistible 
power, which excluded them from intercourse with any other 
European potentate than the first discoverer of the coast of the 
particular region claimed: and this was a restriction which those 
European potentates imposed on themselves, as well as on the In- 
dians. The very term "nation," so generally applied to them, 
means "a people distinct from others." The constitution, by de- 
claring treaties already made, as well as those to be made, to be 
the supreme law of the land, has adopted and sanctioned the pre- 
vious treaties with the Indian nations, and consequently admits 
their rank among those powers who are capable of making treaties. 
The words "treaty" and "nation" are words of our own language, 
selected in our diplomatic and legislative proceedings, by ourselves, 
having each a definite and well-understood meaning. We have 
applied them to Indians, as we have applied them to the other 
nations of the earth. They are applied to all in the same sense. 

Georgia, herself, has furnished conclusive evidence that her 
former opinions on this subject concurred with those entertained 



WORCESTER v. GEORGIA. 593 

by her sister States, and by the government of the United States. 
Various acts of her legislature have been cited in the argument, in- 
cluding the contract of cession made in the year 1802, all tending 
to prove her acquiescence in the universal conviction that the 
Indian nations possessed a full right to the lands they occupied, 
until that right should be extinguished by the United States, with 
their consent; that their territory was separated from that of any 
State within whose chartered limits they might reside, by a boun- 
dary line, established by treaties; that, within their boundary, they 
possessed rights with which no State could interfere; and that the 
whole power of regulating the intercourse with them, was vested 
in the United States. A review of these acts, on the part of 
Georgia, would occupy too much time, and is the less necessary, 
because they have been accurately detailed in the argument at the 
bar. Her new series of laws, manifesting her abandonment of these 
opinions, appears to have commenced in December, 1828. 

In opposition to this original right, possessed by the undisputed 
occupants of every countij; to this recognition of that right, 
which is evidenced by our history, in every change through which 
we have passed; is placed the charters granted by the monarch of a 
distant and distinct region, parcelling out a territory in possession 
of others whom he could not remove and did not attempt to re- 
move, and the cession made of his claims by the treaty of peace. 

The actual state of things at the time, and all history since, ex- 
plain these charters; and the king of Great Britain, at the treaty 
of peace, could cede only what belonged to his crown. These 
nevvdy asserted titles can derive no aid from the articles so often 
repeated in Indian treaties; extending to them, first, the protec- 
tion of Great Britain, and afterwards that of the United States. 
These articles are associated with others, recognizing their 
title to self-government. The very fact of repeated treaties with 
them recognizes it; and the settled doctrinfe of the law of nations 
is, that a weaker power does not surrender its independence — its 
right of self-government, by associating with a stronger, and tak- 
ing i-ts protection. A weak state, in order to provide for its safety, 
may place itself under the protection of one more powerful, with- 
out stripping itself of the right of government, and ceasing to be 
a state. Examples of this kind are not wanting in Europe. "Trib- 
utaiy and feudatory states," says Vattel, "do not thereby cease to 
be sovereign and independent states, so long as self-government 
and sovereign and independent authority are left in the admin- 
istration of the state." At the present day, more than one state 
38 



594 CASES ON CONSTITUTIONAL LAW. 

may be considered as holding its right of self-government under 
the guarantee and protection of one or more allies. 

The Cherokee nation, then, is a distinct community, occupying 
its own territory, with boundaries accurately described, in which 
the laws of Georgia can have no force, and which the citizens of 
Georgia have no right to enter, but with the assent of the Chero- 
kees themselves, or in conformity with treaties and with the acts 
of congress. The whole intercourse between the United States 
and this nation, is, by our constitution and laws, vested in the 
government of the United States. 

The act of the State of Georgia, under which the plaintiff in 
error was prosecuted, is consequently void, and the judgment a 
nullity. Can this court revise and reverse it? 

If the objection to the system of legislation, lately adopted by 
the legislature of Georgia, in relation to the Cherokee nation, was 
confined to its extra-territorial operation, the objection, though 
complete, so far as respected mere right, would give this court no 
power over the subject. But it goes much further. If the review 
which has been taken be correct, and we think it is, the acts of 
Georgia are repugnant to the constitution, laws, and treaties of the 
United States. 

They interfere forcibly with the relations established between 
the United States and the Cherokee nation, the regulation of 
which, according to the settled principles of our constitution, are 
committed exclusively to the government of the Union. 

They are in direct hostility with treaties, repeated in a succes- 
sion of years, Avhich mark out the boundary that separates the 
Cherokee country from Georgia, guarantee to them all the land 
within their boundary, solemnly pledge the faith of the United 
States to restrain their citizens from trespassing on it, and recog- 
nize the pre-existing j)ower of the nation to govern itself. 

They are in equal hostility with the acts of congress for regu- 
lating this intercourse, and giving effect to the treaties. 

The forcible seizure and abduction of the plaintiff in error, who 
was residing in the nation with its permission, and by authority 
of the President of the United States, is also a violation of the acts 
which authorize the chief magistrate to exercise this authority. 

Will ithese powerful considerations avail the plaintiff in error? 
We think they will. He was seized, and forcibly carried away, 
while under guardianship of treaties guaranteeing the country in 
which he resided, and taking it under the protection of the United 
States. He was seized while performing, under the sanction of the 
chief magistrate of the Union, those duties which the humane 



FONG YUE TING v. UNITED STATES. 595 

policy adopted by congress had recommended. He was appre- 
hended, tried, and condemned, under color of a law which has been 
shown to be repugnant to the constitution, laws, and treaties of the 
United States. Had a judgment, liable to the same objections, 
been rendered for property, none would question the jurisdiction 
of this court. It cannot be less clear when the judgment affects 
personal liberty, and inflicts disgraceful punishment, if punish- 
ment could disgrace when inflicted on innocence. The plaintiff 
in error is not less interested in the operation of this unconstitu- 
tional law than if it affected his property. He is not less entitled 
to the protection of the consititution, laws, and treaties of his 
country. 

This point has been elaborately argued and, after deliberate 
consideration, decided, in the case of Cohens v. The Common- 
wealth of Virginia, 6 Wheat., 264. 

It is the opinion of this court that the judgment of the superior 
court for the county of Gwinnett, in the State of Georgia, con- 
demning Samuel A. Worcester to hard labor, in the penitentiary 
of the State of Georgia, for four years, was pronounced by that 
court under color of a law which is void, as being repugnant to the 
constitution, treaties, and laws of the United States, and ought, 
therefore, to be reversed and annulled. 

[Justices McLean and Washington delivered concurring 
opinions, and Justice Baldwin rendered a dissenting opinion.] 



FONG YUE TING v. UNITED STATES. 

WONG QUAN V. UNITED STATES. 

LEE JOE V. UNITED STATES. 

149 U. S., 698. Decided 1893. 

These were three writs of habeas corpus, granted by the Circuit 
Court of the United States, for the Southern District of New York, 
upon petitions of Chinese laborers, arrested and held by the marshal 
of the district for not having certificates of residence, under section 
G of the act of May 5, 1892, c. 60, which is copied in the mar- 
gin. . . . 

Each petition alleged that the petitioner was arrested and de- 
tained without due process of law, and that section 6 of the act of 



596 CASES ON CONSTITUTIONAL LAW. 

May 5, 1892, was imconstitutional and void. [The section com- 
plained of required Chinese laborers within the limits of the 
United States at the time of the passage of the act to take out 
certificates of residence. Those who neglected to do so within one 
year without good cause were made liable to deportation.] 

In each case, the Circuit Court, after a hearing upon the writ 
of habeas corpus and the return of the marshal, dismissed the writ 
of habeas corpus, and allowed an appeal of the petitioner to this 
court, and admitted him to bail pending the appeal. . . . 

Me. JrsTiCE Geat, after stating the facts, delivered the opinion 
of the court. 

The general principles of public law which lie at the foundation 
of these cases are clearly established by previous judgments of this 
court, and by the authorities therein referred to. 

In the recent case of Mshimura Ekiu v. United States, 143 
U. S., 651, 659, the court, in sustaining the action of the execu- 
tive department, putting in force an act of Congress for the ex- 
clusion of aliens, said: "It is an accepted maxim of international 
law, that every sovereign nation has the power, as inherent in sov- 
ereignty, and essential to self-preServation, to forbid the entrance 
of foreigners within its dominions, or to admit them only in such 
cases and upon such conditions as it may see fit to prescribe. In 
the United States, this power is vested in the national government, 
to which the Constitution has committed the entire control of inter- 
national relations, in peace as well as in war. It belongs to the 
political department of the government, and may be exercised 
either through treaties made by the President and Senate, or 
through statutes enacted by Congress." 

The same views were more fully expounded in the earlier case 
of Chae Chan Ping v. United States, 130 U. S., 581, in which the 
validity of a former act of Congress, excluding Chinese laborers- 
from the United States, under the circumstances therein stated, 
was affirmed. 

In the elaborate opinion delivered by Mr. Justice Field, in behalf 
of the court, it was said: '"Those laborers are not citizens of the 
United States; they are aliens. That the government of the 
United States, through the action of the legislative department, 
can exclude aliens from its territory is a proposition which we do 
not think open to controversy. Jurisdiction over its own territory 
to that extent is an incident of every independent nation. It is 
a part of its independence. If it could not exclude aliens, it would 
be to that extent subject to the control of another power." "The 



FONG YUE TING v. UNITED STATES. 597 

United States, in their relation to foreign countries and their 
subjects or citizens, are one nation, invested with powers which 
belong to independent nations, the exercise of which can be 
invoked for the maintenance of its absolute independence and se- 
curity throughout its entire territory." 130 U. S., 603, GO-t. 

It was also said, repeating the language of Mr. Justice Bradley 
in Knox v. Lee, 13 Wall., 457, 555: ''The United States is not 
only a government, but it is a national government, and the only 
government in this country that has the character of nationality. 
It is invested with power over all the foreign relations of the 
country, war, peace, and negotiations and intercourse with other 
nations; all of which are forbidden to the state governments." 
130 U. S., 605. And it was added: "For local interests the 
several States of the Union exist; but for international purposes, 
embracing our relations with foreign nations, we are but one peo- 
ple, one nation, one power." 130 U. S., 606. 

The court then went on to say: "To preserve its independence, 
and give security against foreign aggression and encroachment, is 
the highest duty of every nation, and to attain these ends nearly 
all other considerations are to be subordinated. It matters not in 
what form such aggression and encroachment come, whether from 
ihe foreign nation acting in its national character, or from vast 
hordes of its people crowding in upon us. The government, pos- 
sessing the powers which are to be exercised for protection and 
security, is clothed with authority to determine the occasion on 
which the powers shall be called forth; and its determination, so 
far as the subjects affected are concerned, is necessarily conclusive 
upon all its departments and officers. If, therefore, the govern- 
ment of the United States, through its legislative department, 
considers the presence of foreigners of a different race in this 
country, who will not assimilate with us, to be dangerous to its 
peace and security, their exclusion is not to be stayed because at 
the time there are no actual hostilities with the nation of which 
the foreigners are subjects. The existence of war would render 
the necessity of the proceeding only more obvious and pressing. 
The same necessity, in a less pressing degree, may arise when war 
does not exist, and the same authority which adjudges the neces- 
sity in one case must also determine it in the other. In both cases, 
its determination is conclusive upon the judiciary. If the gov- 
ernment of the country of which the foreigners excluded are sub- 
jects is dissatisfied with this action, it can make complaint to the 
executive head of our government, or resort to any other measures 
which, in its judgment, its interests or dignity may demand; and 



698 CASES ON CONSTITUTIONAL LAW. 

there lies its only remedy. The power of the government to ex- 
clnde foreigners from the country, whenever, in its judgment, the 
public interests require such exclusion, has been asserted in re- 
peated instances, and never denied by the executive or legislative 
departments." 130 U. S., 606, 607. Tliis statement was sup- 
ported by many citations from the diplomatic correspondence of 
successive Secretaries of State, collected in T\niarton's Interna- 
tional Law Digest, § 206. 

The right of a nation to expel or deport foreigners, who have 
not been naturalized or taken any steps towards becoming citizens 
of the country, rests upon the same grounds, and is as absolute and 
unqualified as the right to prohibit and prevent their entrance into 
the country. 

This is clearly affirmed in dispatches referred to by the court 
in Chae Chan Ping's Case. In 1856, Mr. Marcy wrote: "Every 
society possesses the undoubted right to determine who shall com- 
pose its members, and it is exercised by all nations, both in peace 
and war. A memorable example of the exercise of this power in 
time of peace was the passage of the alien law of the United States 
in the year 1798." In 1869, Mr. Fish wrote: "The control of the 
people within its limits, and the right to expel from its territory 
persons who are dangerous to the peace of the State, are (too clearly 
within the essential attributes of sovereignty to be seriously con- 
tested." "Wharton's International Law Digest, § 206; 130 U. S., 
607. . . 

The right to exclude or to expel all aliens, or any class of aliens, 
absolute^ or ujjon certain conditions, in war or in peace, being an 
inherent and inalienable right of every sovereign and independent 
nation, essential to its safety, its independence, and its welfare, 
the question now before the court is whether the manner in which 
Congress has exercised this right in sections 6 and 7 of the act of 
1892 is consistent with the Constitution. 

The L^nited States are a sovereign and independent nation, and 
are vested by the Constitution with the entire control of interna- 
tional relations, and with all the powers of government necessary 
to maintain that control and to make it effective. The only gov- 
ernment of this country, which other nations recognize or treat 
with, is the government of the Union; and the only American 
flag known throughout the world is the flag of the United States. 

The Constitution of the United States speaks with no uncertain 
sound upon this subject. That instrument, established by the 
people of the I'nited States as the fundamental law of the land, 
has conferred upon the President the executive power; has made 



FONG YUE TING v. UNITED STATES. 599 

him the commander-in-chief of the army and navy; has author- 
ized him, hy and with the consent of the Senate, to make treaties, 
and to appoint ambassadors, piibHc ministers, and consuls; and 
has made it his duty to take care that the laws be faithfully exe- 
cuted. The Constitution has granted to Congress the power to 
regulate commerce with foreign nations, including the entrance 
of ships, the importation of goods, and the bringing of persons 
into the ports of the United States; to establish a uniform rule of 
naturalization; to define and punish piracies and felonies com- 
mitted on the high seas, and offenses against the law of nations; 
to declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water; to raise and support 
armies, to provide and maintain a navy, and to make rules for the 
government and regulation of the land and naval forces; and to 
make all laws necessary and proper for carrying into execution 
these powers, and all other powers vested by the Constitution in 
the government of the United States, or in any department or 
officer thereof. And the several States are expressly forbidden to 
enter into any treaty, alliance, or confederation; to grant letters 
of marque and reprisal; to enter into any agreement or compact 
with another State, or with a foreign power; or to engage in war, 
unless actually invaded, or in such imminent danger as will not 
admit of delay. 

In exercising the great power which the people of the United 
States, by establishing a written constitution as the supreme and 
paramount law, have vested in this court, of determining, when- 
ever the question is properly brought before it, whether the acts 
of the legislature or of the executive are consistent with the Con- 
stitution, it behooves the court to be careful that it does not under- 
take to pass upon political questions, the final decision of which 
has been committed by the Constitution to the other denartments 
of the government. 

As long ago said by Chief Justice Marshall, and since constantly 
maintained by this court: "The sound construction of the Con- 
stitution must allow to the national legislature that discretion, vidth 
respect to the means by which the powers it confers are to be car- 
ried into execution, which will enable that body to perform the 
high duties assigned to it, in the manner most beneficial to the 
people. Let the end be legitimate, let it be within the scope of 
ithe Constitution, and all means which are appropriate, which are 
plainly adapted to that end, which are not prohibited, but consist- 
ent with the letter and spirit of the Constitution, are constitu- 
tional." "Where the law is not prohibited, and is really calculated 



600 CASES ON CONSTITUTIONAL LAW. 

to effect any of the objects intrusted to the government, to under- 
take here to inqmre into the degree of its necessity would be to 
pass the line which circumscribes the judicial department, and to 
tread on legislative ground. This court disclaims all pretensions 
to such a power." MeCuUoch v. Marjdand, -i "\Mieat., 316, 421, 
423; Juilliard v. Greenman, 110 U. S., 421, 440, 450; Ex parte 
Yarbrough, 110 U. S., 651, 658; In re Eapier, 143 U. S., 110, 
134; Logan v. United States, 144 U. s., 263, 283. 

The power to exclude or to expel aliens, being a power atfecting 
international relations, is vested in the political departments of 
the government, and is to be regulated by treaty or by act of Con- 
gress, and to be executed by the executive authority according to 
the regulations so established, except so far as the judicial depart- 
ment has been authorized by treaty or by statute, or is required by 
the paramount law of the Constitution, to intervene. 

In Mshimura Ekiu's Case, it was adjudged that, although Con- 
gress might, if it saw fit, authorize the courts to investigate and 
ascertain the facts upon which the alien's right to land was made 
by the statutes to depend, yet Congress might intrust the final 
determination of those facts to an executive officer, and that, if it 
did so, his order was due process of law, and no other tribunal, 
unless expressly authorized by law to do so, was at liberty to re- 
examine the evidence on which he acted, or to controvert its suf- 
ficiency. 142 U. S., 660. 

The power to exclude aliens and the power to expel them rest 
upon one foundation, are derived from one source, are supported 
by the same reasons, and are in truth but parts of one and the 
same power. 

The power of Congress, therefore, to expel, like the power to 
exclude aliens, or any specified class of aliens, from the country, 
may be exercised entirely through executive officers; or Congress 
may call in the aid of the judiciary to ascertain any contested facts 
on which an alien's right to be in the country has been made by 
Congress to depend. 

Congress, having the right, as it may see fit, to expel aliens of a 
particular class, or to permit them to remain, has undoubtedly the 
right to provide a system of registration and identification of the 
members of that class within the country, and to take all proper 
means to carry out the system which it provides. . . . 

In our jurisprudence, it is well settled that the provisions of an 
act; of Congress, passed in the exercise of its constitutional author- 
ity, on this, as on any other subject, if clear and explicit, must be 
upheld b}^ the courts, even in contravention of express stipulations 



FONG YUB TING v. UNITED STATES. 601 

in an earlier treaty. As was said by this court in Chae Chan 
Ping's Case, following previous decisions: "The treaties were of 
no greater legal obligation than the act of Congress. By the Con- 
stitution, laws made in pursuance thereof and treaties made under 
the authority of the United States are both declared to be the. 
supreme law of the land, and no paramount authority is given to 
one over the other. A trearty, it is true, is in its nature a contract 
between nations, and is often merely promissory in its character, 
requiring legislation to carry its stipulations into effect. Such 
legislation will be open to future repeal or amendment. If the 
treaty operates by its own force, and relates to a subject within the 
power of Congress, it can be deemed in that particular only the 
equivalent of a legislative act, to be repealed or modified at the 
pleasure of Congress. In either case, the last expression of the 
sovereign will must control." "So far as a treaty made by the 
United States with any foreign nation can become the subject 
of judicial cognizance in the courts of this country, it is subject 
to such acts as Congress may pass for its enforcement, modifica- 
tion, or repeal." 130 U. S., 600. See also Foster v. Neilson, 2 
Pet., 253, 314; Edye v. Eobertson, 112 U. S., 580, 597-599; mnt- 
ney v. Eobertson, 124 U. S., 190. 

By the supplementary act of October 1, 1888, c. 1064, it was 
enacted, in section 1, that "from and after the passage of this act, 
it shall be unlawful for any Chinese laborer, who shall at any 
time heretofore have been, or who may now or hereafter be, a 
resident within the United States, and who shall have departed or 
shall depart therefrom, and shall not have returned before the 
passage of this act, to return to, or remain in, the United States;" 
and in section 2, that "no certificates of identity, provided for in 
the fourth and fifth sections of the act to which this is a supple- 
ment, shall hereafter be issued; and every certificate heretofore 
issued in pursuance thereof is hereby declared void and of no effect, 
and the Chinese laborer claiming admission by virtue thereof shall 
not be permitted to enter the United States." 25 Stat., 504. 
. . . [Here follows a statement and discussion of Chae Chan 
Ping V. United States, 130 U. S., 581.] 

By the law of nations, doubtless, aliens residing in a country, 
with the intention of making it a permanent place of abode, ac- 
quire, in one sense, a domicil there; and, while they are per- 
mitted by the nation to retain such a residence and domicil, are 
subject to its laws, and may invoke its protection against other 
nations. This is recognized by those publicists who, as has been 
seen, maintain in the strongest terms the right of the nation to 



€02 CASES ON CONSTITUTIONAL LAW. 

expel any or all aliens at its pleasure. Yattel, lib. 1^ c. 19 § 213; 
1 Pliillimore, c. 18 § 321; Mr. Marcy, in Koszta's Case, Wharton's 
International Law Digest, § 198. See also Lau Ow Bew v. United 
States, 144 U. S., 47, 62; Merlin, Eepertoire de Jurisprudence, 
Domicile, § 13, quoted in the case, above cited, of In re Adam, 1 
Moore, P, C, 460, 472, 473. 

Chinese laborers, therefore, like all other aliens residing in the 
United States for a shorter or longer time, are entitled, so long as 
they are permitted by the government of the United States to 
remain in the country, to the safeguards of the Constitution, and 
to the protection of the laws, in regard to their rights of person 
and of property, and to their civil and criminal responsibility. 
But they continue to be aliens, having taken no steps towards be- 
coming citizens, and incapable of becoming such under the natural- 
ization laws; and therefore remain subject to the power of Congress 
to expel them, or to order them to be removed and deported from 
the country, whenever in its judgment their removal is necessary 
or expedient for the public interest. . . . 

The question whether, and upon what conditions, these aliens 
shall be permitted to remain within the United States being one 
to be determined by the political departments of the government, 
the judicial department cannot properly express an opinion upon 
the wisdom, the policy or the justice of the measures enacted by 
Congress in the exercise of the powers confided to it by the Con- 
stitution over this subject. 

Upon careful consideration of the subject, the only conclusion 
which appears to us to be consistent with the principles of inter- 
national law, with the Constitution and laws of the United. States, 
and with the previous decisions of this court, is that in each of 
these cases the judgment of the Circuit Court, dismissing the writ 
of habeas corpus, is right and must be Affirmed. 

[Chief Justice Fullee, Justice Beewee, and Justice Field 
rendered dissenting opinions.] 



XIV. JURISDICTION OF THE FEDERAL COURTS. 



CHISHOLM, EXECUTOK, v. GEOEOrA. 

2 Dallas, 419. Decided 1793. 

[Chisholm, executor, brougbt an action of assumpsit against the 
State of Georgia. Return having been made, Attorney-General 
Eandolph moved that unless the State of Georgia should cause an 
appearance to be made in its behalf, judgment should be entered 
against the said State and a writ of inquiry of damages be awarded. 
When the case came before the court for consideration, the counsel 
for the State of Georgia made a protest in writing against the 
court's taking jurisdiction of the case, but declined to take any part 
in arguing the question. The judges delivered their opinions 
seriatim. ] 

Wilson, J. This is a case of uncommon magnitude. One of 
the parties to it is a State; certainly respectable, claiming to be 
sovereign. The question to be determined is, whether this State, 
so respectable, and whose claim soars so high, is amenable to the 
jurisdiction of the Supreme Court of the United States? This 
question, important in itself, will depend on others more impor- 
tant still; and may perhaps be ultimately resolved into one no 
less radical than this — ''Do the people of the United States form 
a Nation?" 

I cause so conspicuous and interesting, should be carefully and. 
accutately viewed from every possible point of sight. I shall exam- 
ine it, 1st. By the principles of general jurisprudence. 2d. By 
the laws and practice of particular states and kingdoms. From the 
law of nations little or no illustration of this subject can be 
expected. By that law the several states and governments spread 
over our globe are considered as forming a 'society, not a nation. 
It has only been by a very few comprehensive minds, such as those 
of Elizabeth and the Fourth Henry, that this last great idea has 
been even contemplated. 3dly, and chiefly, I shall examine the 
important question before us, by the constitution of the United 

603 



604 CASES ON CONSTITUTIONAL LAW. 

States, and the legitimate result of that valuable instrument. 

III. I am, thirdly and chiefly, to examine the important ques- 
tion now before us, by the constitution of the United States, and 
the legitimate result of that valuable instrument. Under this view 
the question is naturally subdivided into two others. 1. Could 
the constitution of the United States vest a jurisdiction over the 
State of Georgia? 2. Has that constitution vested such jurisdic- 
tion in this court? . . . 

Concerning the prerogative of kings, and concerning the sover- 
eignty of States, much has been said and written; but little has 
been said and written concerning a subject much more dignified 
and important, the majesty of the people. . . . The well- 
known address used by Demosthenes, when he harangued and 
animated his assembled countr5^men, was, "0 men of Athens." 
With the strictest propriety, therefore, classical and political, our 
national scene opens with the most magnificent object which the 
nation could present. "The people of the United States" are the 
first personages introduced. Who were those people? They were 
the citizens of thirteen States, each of which had a separate con- 
stitution and government, and all of which were connected to- 
gether by articles of confederation. To the ]3urposes of public 
strength and felicity that confederacy was totally inadequate. A 
requisition on the several States terminated its legislative author- 
ity; executive or judicial authority it had none. In order, there- 
fore, to form a more perfect union, to establish justice, to insure 
domestic tranquillity, to provide for the common defense, and to 
secure the blessings of liberty, those people, among whom were 
the people of Georgia, ordained and established the present con- 
stitution. By that constitution legislative power is vested, execu- 
tive power is vested, judicial power is vested. 

The question now fairly opens to our view, could the people 
of those States, among whom were those of Georgia, bind those 
States, and Georgia among the others, by the legislative, execu- 
tive, and judicial power so vested? If the principles on which I 
have founded myself are just and true, this question must, un- 
avoidably, receive an affirmative answer. If those States were the 
work of those people, those people, and that I may apply the case 
closety, the people of Georgia, in particular, could alter, as they 
pleased, their former work; to any given degree, they could dimin- 
ish as well as enlarge it. Any or all of the former State powers 
they could extinguish or transfer. The inference which necessarily 
results is, that the constitution ordained and established by those 



CHISHOLM, EXECUTOR, v. GEORGIA. 605 

people, and still closely to apply the case, in })articnlar by the 
people of Georgia, could vest jurisdiction or judicial power over 
those States and over the State of Georgia in particular. 

The next question under this head, is, Has the constitution 
done so? Did those people mean to exercise this their undoubted 
power? These questions may be resolved, either by fair and con- 
clusive deductions, or by direct and explicit dcclara-tions. In order, 
ultimately to discover whether the people of the United States 
intended to bind those States by the judicial power vested by 
the national constitution, a previous inquiry will naturally be, did 
those people intend to bind those States by the legislative power 
vested by that constitution? The articles of confederation, it is 
well known, did not operate upon individual citizens; but oper- 
ated only upon States. This defect was remedied by the national 
constitution, which, as all allow, has an operation on individual 
citizens. But if an opinion, which some seem to entertain, be just, 
the defect remedied on one side was balanced by a defect intro- 
duced on the other; for they seem to think that the present con- 
stitution operates only on individual citizens, and not on States. 
This opinion, however, a])pears to be altogether unfounded. When 
certain laws of the States are declared to be "subject to the revision 
and control of the Congress,"^ it cannot, surely, be contended that 
the legislative power of the national government was meant to have 
no operation on the several States. The fact uncontrovertibly 
established in one instance, proves the principle in all other in- 
stances to which the facts will be found to apply. We may then 
infer that the people of the United States intended to ])ind the 
several States by the legislative power of the national govern- 
ment. 

In order to make the discovery, at which we ultimately aim, a 
second previous inquiry will naturally be, Did the people of the 
United States intend to bind the several States by the executive 
power of the national government? The affirmative answer to the 
former question directs, unavoidably, an allirmative answer to this. 
Ever since the time of Bracton, his maxim, I believe, has been 
deemed a good one — " Supervamium esset leges condere, nisi esset 
qui leges tueretur. "- "It would be superfluous to make laws, unless 
those laws, when made, were to be enforced." When the laws 
are plain, and the application of them is uncontroverted, they are 
enforced immediately by the executive authority of government. 
When the application of them is doubtful or intricate, the inter- 

1 Art. 1, s. 10. 2 1 Brae, 107. 



606 CASES ON CONSTITUTIONAL LAW. 

position of the judicial authority becomes necessary. The same 
principle, therefore, which directed us from the first to the second 
step, will direct us to the third and last step of our deduction. 
Fair and conclusive deduction, then, evinces that the people of 
the United States did vest this court with jurisdiction over the 
State of Georgia. The same truth may be deduced from the 
declared objects and the general texture of the constitution of 
the United States. One of its declared objects is, to form a union 
more perfect than, before that time, had been formed. Before 
that time the Union possessed legislative, but unenforced legisla- 
tive power over the States. jSTothing could be more natural than 
to intend that this legislative power should be enforced by powers 
executive and judicial. Another declared object is "to establish 
justice." This points, in a particular manner, to the judicial au- 
thority. And when we view this object in conjunction with the 
declaration, "that no State shall pass a law impairing the obliga- 
tion of contracts," we shall probably think that this object points, 
in a particular manner, to the jurisdiction of the court over the 
several States. What good purpose could this constitutional pro- 
vision secure if a State might pass a law impairing the obligation 
of its own contracts, and be amenable, for such a violation of right, 
to no controlling judiciary power? We have seen, that on princi- 
ples of general jurisprudence, a State, for the breach of a con- 
tract, may be liable for damages. A third declared object is, "to 
insure domestic tranquillity." This tranquillity is most likely to 
be disturbed by controversies between States. These consequences 
will be most peaceably and effectually decided by the establishment 
and by the exercise of a superintending judicial authority. By 
such exercise and establishment, the law of nations — the rule be- 
tween contending States — will be enforced among the several 
States in the same manner as municipal law. 

TMioever considers, in a combined and comprehensive view, the 
general texture of the constitution, will be satisfied that the people 
of the United States intended to form themselves into a nation 
for national purposes. They instituted, for such purposes, a na- 
tional government comjDlete in all its parts, with powers legisla- 
tive, executive and judiciary; and in all those powers extending 
over the whole nation. Is it congruous that, with regard to 
such purj)oses, any man or body of men, any person, natural or 
artificial, should be permitted to claim successfully an entire ex- 
emption from the jurisdiction of the national government? Would 
not such claims, crowned with success, be repugnant to our very 
existence as a nation? Wlien so many trains of deduction, coming^ 



CHISHOLM, EXECUTOR, v. GEORGIA. 607 

from different quarters, converge and unite at last in the same 
point, we may safely conclude, as the legitimate result of this con- 
stitution, that the State of Georgia is amenable to the jurisdic- 
tion of this court. 

But, in my opinion, this doctrine rests not upon the legitimate 
result of fair and conclusive deduction from the constitution; it 
is confirmed, beyond all doubt, by the direct and explicit declara- 
tion of the constitution itself. "The judicial power of the United 
States shall extend to controversies between two States."^ Two 
States are supposed to have a controversy between them; this 
controversy is supposed to be brought before those vested with 
the judicial power of the United States; can the most consum- 
mate degree of professional ingenuity devise a mode by which 
this "controversy between two States" can be brought before a 
court of law, and yet neither of those States be a defendant? "The 
judicial power of the United States shall extend to controversies 
between a State and citizens of another State." Could the strictest 
legal language; could even that language which is peculiarly 
appropriated to an act, deemed by a great master to be one of 
the most honorable, laudable, and profitable things in our law; 
could this strict and appropriated language describe with more 
precise accuracy the cause now depending before the tribunal? 
Causes, and not parties to causes, are weighed by justice in her 
equal scales; on the former, solely, her attention is fixed; to the 
latter she is, as she is painted, blind. 

I have now tried this question by all the touchstones to which 
I proposed to apply it. I have examined it by the principles of 
general jurisprudence; by the laws and practice of States and 
kingdoms; and by the constitution of the United States. From 
all, the combined inference is, that the action lies. 

CusHiNG, J. The grand and principal question, in this 
case, is whether a State can, by the federal constitution, be 
sued by an individual citizen of another State. The point turns 
not upon the law or practice of England, although perhaps it may 
be in some measure elucidated thereby, nor upon the law of any 
other country whatever; but upon the constitution established by 
the people of the United States; and particularly upon the extent 
of powers given to the federal judiciary in the 2d section of the 3d 
article of the constitution. It is declared that "the judicial power 
shall extend to all cases in law and equity arising under the con- 
stitution, the laws of the United States, or treaties made or which 
shall be made under their authority: to all cases affecting ambassa- 

1 Art. 3, s. 2. 



608 CASES ON CONSTITUTIONAL LAV/. 

dors or other piiblic ministers and consuls; to all cases of ad- 
miralty and maritime jurisdiction; to controversies to which the 
United States shall be a party; to controversies between two or 
more States, and citizens of another State; between citizens of dif- 
ferent States; between citizens of the same States claiming lands 
under grants of different States; and between a State and citizens 
thereof and foreign States, citizens or subjects." The judicial 
power, then, is expressly extended to "controversies between a State 
and citizens of another State." When a citizen makes a demand 
against a State of which he is not a citizen, it is as really a con- 
troversy between a State and a citizen of another State, as if such 
State made a demand against such citizen. The case then seems 
clearly to fall within the letter of the constitution. It may be 
suggested that it could not be intended to subject a State to be 
a defendant:, because it would affect the sovereignty of States. If 
that be the case, what shall we do with the immediate preceding 
clause: "controversies between two or more States," where a State 
must of necessity be a defendant? If it was not the intent, in the 
very next clause also, that a State might be made defendant, why 
was it so expressed as naturally to lead to and comprehend that 
idea? Why was not an exception made if one was intended? 

Again, what are we to do with the last clause of the section of 
judicial powers, namely, "controversies between a State or the citi- 
zens thereof and foreign States or citizens"? Here, again. States 
must be suable or liable to be made defendants by this clause, 
which has a similar mode of language with the two other clauses 
I have remarked upon. For if the judicial power extends to a 
controversy between one of the United States and a foreign State, 
as the clause expresses, one of them must be defendant. And then 
what becomes of sovereignty of States, as far as suing affects it? 
But although the words appear reciprocally to affect the State 
here and a foreign State, and put them on the same footing as far 
as may be, yet ingenuity may say that the State here may sue, 
but cannot be sued; but that the foreign State may be sued, but 
cannot sue. We may touch foreign sovereignties, but not our own. 
But I conceive the reason of the thing as well as the words of 
the constitution, tend to show that the federal judicial power 
extends to a suit brought by a foreign State, against any one of the 
United States. One design of the general government was for 
managing the great affairs of peace and war, and the general de- 
fense, which were impossible to be conducted by the States sep- 
arately. Incident to these powers, and for preventing controversies 
between foreign powers, or citizens from rising to extremities and 



CHISHOLM, EXECUTOR, v. GEORGIA. 609 

to an appeal to the sword, a national tribunal was necessary, amic- 
ably, to decide them, and thus ward off such fatal public calamity. 
Thus States at home and their citizens, and foreign States and their 
citizens, are put together without distinotion upon the same footing, 
as far as may be, as to controversies between them. So also with 
respect to controversies between a State and citizens of another 
State at home, comparing all the clauses together the remedy is re- 
ciprocal; the claim to justice equal. As controversies between State 
and State, and between a State and citizens of another State 
might tend gradually to involve States in war and bloodshed, a 
disinterested civil tribunal was intended to be instituted to decide 
such controversies, and preserve peace and friendship. Further: 
if a State is entitled to justice in the federal court, against a cit- 
izen of another State, why not such citizen against the State, 
when the same language equally comprehends both? The rights 
of individuals and the justice due to them are as dear and pre- 
cious as those of States. Indeed the latter are founded upon 
the former, and the great end and object of them must be to secure 
and support the rights of individuals, or else vain is government. 
But still it may be insisted that this will reduce States to mere 
corporations, and take away all sovereignty. As to corporations, 
all States whatever are corporations or bodies politic. The only 
question is, what are their powers? As to individual States and 
the United States, the constitution marks the boundary of powers. 
Whatever power is deposited with the Union by the people for 
their owm necessary security, is so far a curtailing of the power and 
prerogatives of the States. This is, as it were, a self-evident prop- 
osition; at least it cannot be contested. Thus the power of de- 
claring war, making peace, raising and supporting armies for public 
defense, levying duties, excises, and taxes, if necessary, with many 
other powers, are lodged in Congress, and are a most essential 
abridgement of State sovereignty. Again, the restrictions upon 
the States. "'No State shall enter into any treaty, alliance, or 
confederation, coin money, emit bills of credit, make anything but 
gold and silver a tender in payment of debts, pass any law impair- 
ing the obligation of contracts; these, with a number of others, 
are important restrictions of the power of States, and were thought 
necessary to maintain the Union, and to establish some funda- 
mental uniform principles of public justice throughout the whole 
Union. So that I think no argument of force can be taken from 
the sovereignty of States. Where it has been abridged, it was 
thought necessary for the greater indispensable good of the whole. 
If the constitution is found inconvenient in practice in this or 
39 



610 CASES ON CONSTITUTIONAL LAW. 

any other particular; it is well that a regular mode is pointed 
out for amendment. But Avhile it remains^ all ofhces, legislative, 
executive, and judicial, both of the States and of the Union, are 
bound by oath to support it. 

One other objection has been suggested; that if a State may be 
sued by a citizen of another State, then the United States may 
be sued by a citizen of any one of the States, or, in other words, 
by any of their citizens. If this be a necessary consequence, it 
must be so. I doubt the consequence from the different word- 
ing of the different clauses, connected with other reasons, ^yhen 
speaking of the United States, the constitution says, "controversies 
to which the United States shall be a party," not controversies 
between the United States and any of their citizens. "Wlien speak- 
ing of States, it says, ''controversies between two or more States, 
between a State and citizens of another State." As to reasons for 
citizens suing a different State which do not hold equally good 
for suing the United States, one may be, that as controversies 
between a State and citizens of another State might have a ten- 
dency to involve both States in contest, and perhaps in war, a 
common umpire to decide such controversies may have a tendency 
to prevent the mischief. That an object of this kind was had 
in view by the framers of the constitution, I have no doubt, when 
I consider the clashing interfering laws which were made in the 
neighboring States before the adoption of the constitution, and 
some affecting the property of citizens of another State in a very 
different manner from that of their own citizens. But I do not 
think it necessary to enter fully into the question, whether the 
United States are liable to be sued by an individual citizen, in 
order to decide the point before us. Upon the whole, I am of 
opinion that the constitution warrants a sui't^ against a State by 
an individual citizen of another State. . . . 

Jay, C. J. . . . Let us now proceed to inquire whether 
Georgia has not, by being a party to the national com- 
pact, consented to be suable by individual citizens of another 
State. This inquir\^ saturally leads our attention, 1st. To the 
design of the constitution. 2d. To the letter and express declara- 
tion in it. 

Prior to the date of the constitution, the people had not any na- 
tional tribunal to which they could resort for justice; the dis- 
tribution of justice was then confined to State judicatories, in 
whose institution and organization the people of the other States 
had no participation, and over whom they had not the least con- 



CHISHOLM, EXECUTOR, v. GEORGIA. 611 

trol. There was then no general court of appellate jurisdiction 
by whom the errors of State courts, affecting either the nation at 
large or the citizens of any other State, could be revised and 
corrected. Each State was obliged to acquiesce in the measure of 
justice w^hich another State might yield to her or to her citizens; 
and that even in cases where State considerations were not al- 
\\ays favorable to the most exact measure. There was danger 
that from this source animosities would in time result; and as the 
transition from animosities to hostilities was frequent in the his- 
tory of independent States, a common tribunal for the termina- 
tion of controversies became desirable, from motives both of jus- 
tice and of policy. 

Prior also to that period the United States had, by taking a 
place among the nations of the earth, become amenal)le to the 
laws of nations, and it was their interest as well as their duty 
to provide that those laws should be respected and obeyed; in 
their national character and capacity the United States were re- 
sponsible to foreign nations for the conduct of each State, relative 
to the laws of nations, and the performance of treaties; and there 
the inexpediency of referring all such questions to State courts, 
and particularly to the courts of delinquent States, became appar- 
ent. While all the States were bound to protect each and the 
citizens of each, it was highly proper and reasonable -that they 
should be in a capacity not only to cause justice to be done to 
each, and the citizens of each, but also to cause justice to be done 
])y each, and the citizens of each, and that, not by violence and 
force, but in a stable, sedate, and regular course of judicial pro- 
cedure. 

These were among the evils against which it was proper for the 
nation, that is, the people of all the United States, to provide 
1)y a national judiciary, to be instituted by the w^hole nation, 
and to be responsible to the whole nation. 

Let us now turn to the constitution. The people therein declare 
that their design in establishing it comprehended six objects. 1st. 
To form a more perfect union. 2d. To establish justice. 3d. 
To insure domestic tranquillity. 4th. To provide for the com- 
mon defense. 5th. To promote the general welfare. 6th. To 
secure the blessings of liberty to themselves and their posterity. 

It may be asked, what is the precise sense and latitude in which 
the W'Ords "to establish justice," as here used, are to be under- 
stood? The answer to this question will result from the provi- 
sions made in the constitution on this head. They are specified 



612 CASES ON CONSTITUTIONAL LAW. 

in the second section of tlie third article^ where it is ordained 
that the judicial power of the United States shall extend to ten 
descriptions of cases, namely: 1st. To all cases arising under this 
constitution; because the meaning, constniction, and operation of 
a compact ought always to be ascertained by all the parties, or by 
authority derived only from one of them. 2d. To all cases arising 
under the laws of the ITnited States; because as such laws, con- 
stitutionally made, are obligatory on each State, the measure of 
obligation and obedience ought not to be decided and fixed by the 
party from whom they are due, but by a tribunal deriving author- 
ity from both the parties. 3d. To all cases arising under treaties 
made by their authority; because, as treaties are compacts made 
by, and obligatory on the whole nation, their operation ought not 
to be affected or regulated by the local laws or courts of a part 
of the nation. 4th. To all cases affecting ambassadors, or other 
public ministers and consuls; because, as these are officers of 
foreign nations, whom this nation are bound to protect and treat 
according to the laws of nations, cases affecting them ought only 
to be cognizable by national authority. 5th. To all cases of 
admiralty and maritime jurisdiction; because, as the seas are 
the joint property of nations, whose right and privileges relative 
thereto are regulated by the laws of nations and treaties, such cases 
necessarily belong to national jurisdiction. 6th. To controversies 
to which the United States shall be a party; because, in cases 
in which the whole people are interested it would not be equal 
or wise to let any one State decide and measure out the justice 
due to others. 7th. To controversies between two or more States; 
because domestic tranquillity requires that the contentions of 
States should be peaceably terminated by a common judicator}^; 
and, because, in a free countr}% justice ought not to depend on 
the will of either of the litigants. 8th. To controversies between 
a State and citizens of another State; because, in case a State (that 
is, all the citizens of it) has demands against some citizens of 
another State, it is better that she should prosecute their demands 
in a national court, than in a court of the State to which those 
citizens belong; the danger of irritation and criminations arising 
from apprehensions and suspicions of partiality being thereby ob- 
viated; because, in cases where some citizens of one State have 
demands against all the citizens of another State, the cause of 
liberty and the rights of men forbid that the latter should be 
the sole judges of the justice due to the latter; and true repub- 
lican government requires that free and equal citizens should have 
free, fair, and equal justice. 9th. To controversies between citi- 



CHISHOLM. EXECUTOR, v. GEORGIA. 613 

zens of the same State, claiming lands under grants of different 
States; because, as the rights of the two States to grant the land 
are drawn into question, neither of the two States ought to decide 
the question. 10th. To controversies between a State or the cit- 
izens thereof and foreign States, citizens or subjects; because, as 
every nation is responsible for the conduct of its citizens towards 
other nations, all questions touching the justice due to foreign 
nations, or people, ought to be ascertained by, and depend on, 
national authority. Even this cursory view of the judicial powers 
of the United States leaves the mind strongly impressed with the 
importance of them to the preservation of tiie tranquillity, the 
equal sovereignty, and the equal right of the people. 

The question now before us renders it necessary to pay particular 
attention to that part of the second section which extends the 
judicial power "to controversies between a State and citizens of 
another State." It is contended that this ought to be construed 
to reach none of these controversies, excepting those in which 
a State may be plaintiff. The ordinary rules for construction 
will easily decide whether those words are to be understood in that 
limited sense. 

This extension of power is remedied, because it is to settle con- 
troversies. It is, therefore, to be construed liberally. It is politic, 
wise, and good, that not only the controversies in which a State is 
plaintiff, but also those in which a State is defendant, should be 
settled; both cases, therefore, are within the reason of the remedy; 
and ought to be so adjudged, unless the obvious, plain, and lit- 
eral sense of the words forbid it. If we attend to the words, we 
find them to be exjsress, positive, free from ambiguity, and with- 
out room for such implied expressions: "The judicial power of 
the United States shall extend to controversies between a State 
and citizens of another State."' If the constitution really meant 
to extend these powers only to those controversies in which a State 
might be plaintiff, to the exclusion of those in which citizens had 
demands against a State, it is inconceivable that it should have 
attempted to convey that meaning in words not only so incom- 
petent, but also repugnant to it; if it meant to exclude a certain 
class of these controversies, why were they not expressly excepted; 
on the contrary, not even an intimation of such intention appears 
in any part of the constitution. It cannot be pretended that where 
citizens urge and insist upon demands against a State, which the 
State refuses to admit and comply with, that there is no contro- 
A-'ersy between them. If it is a controversy between them, then 
it clearly falls not only within the spirit, but the very words of the 



614 CASES ON CONSTITUTIONAL LAW. 

constitution. Wliat is it to the cause of justice, and how can it 
affect the definition of the word controversy, whether the demands 
which cause the dispute are made by a State against citizens of 
another State, or hy the latter against the former? Wlien power 
is thus extended to a controTersy, it necessarily, as to all judicial 
purposes, is also extended to those between whom it subsists. 

TTe find the same general and comprehensive manner of express- 
ing the same ideas in a subsequent clause, in which the constitu- 
tion ordains that "in all cases affecting ambassadors, other public 
ministers and consuls, and those in which a State shall be a party, 
the supreme court shall have original jurisdiction." Did it mean 
here party plaintiff? If that only was meant, it would have been 
easy to have found words to express it. Words are to be under- 
stood in their ordinary and common acceptation, and the word 
party being in common usage applicable both to plaintiff and de- 
fendant, we cannot limit it to one of them in the present case. We 
find the legislature of the United States expressing themselves in 
the like general and comprehensive manner; they speak, in the 
thirteenth section of the judicial act, of controversies where a State 
is a party, and as they do not impliedly or expressly apply that 
term to either of the litigants in particular, we are to understand 
them as speaking of both. In the same section they distinguish 
the cases where ambassadors are plaintiffs, from those in which 
ambassadors are defendants, and make different provisions respect- 
ing those cases; and it is not unnatural to suppose that they would, 
in like manner, have distinguished between cases where a State 
was plaintiff and where a State was defendant, if they had in- 
tended to make any difference between them, or if they had appre- 
hended that the constitution had made any difference between 
them. 

I perceive, and therefore candor urges me to mention, a circum- 
stance, which, seems to favor the opposite side of the question. It is 
this: The same section of the constitution which extends the judi- 
cial power to controversies ''l^etween a State and the citizens of an- 
other State," does also extend that power to controversies to which 
the United States are a party. Xow it may be said, if the word 
party comprehends both plaintiff and defendant, it follows that 
the United States may be sued by any citizen, between whom and 
them there may be a controversy. This appears to me to be fair 
reasoning; but the same principles of candor which urge me to 
mention this objection, also urge me to suggest an important differ- 



CHISHOLM, EXECUTOR, v. GEORGIA. 615 

ence between the two cases. It is this: lu all cases of actions 
against States or individual citizens the national courts are sup- 
ported in all their legal and constitutional proceedings and judg- 
ments by the arm of the executive power of the United States; 
but in eases of actions against the United States, there is no power 
which the courts can call to their aid. From this distinction im- 
portant conclusions are deducible, and they place the case of a 
State, and the case of the United States, in very different points 
of view. . . . 

For the reasons before given, I am clearly of opinion that a State 
is suable by citizens of another State; but lest I should be under- 
stood in a latitude beyond by meaning, I think it necessary to sub- 
join this caution, namely. That such suability may nevertheless 
not extend to all the demands, and to every kind of action; there 
may be exceptions. For instance, I am far from being prepared 
to say that an individual may sue a State on bills of credit issued 
before the constitution was established, and which were issued and 
received on the faith of the State, and at a time when no ideas 
or expectations of judicial interposition were entertained or con- 
templated. . . . 

[Justice Iredell delivered a dissenting opinion. Justice 
Blair rendered a concurring opinion.] 

Note. — "The question, in short,was,whetherthe Constitution was 
a bond of national unity, or such federal league only as would be dis- 
soluble at the pleasure of any party to it. . . . Justice Wilson, 
the ablest and most learned of the associates, took the national 
view and was supported by two others. The Chief Justice was 
thus enabled to declare as the opinion of the court, that under 
the Constitution of the United States, sovereignty belonged to the 
people of the United States. . . . The doctrine of an indis- 
soluble Union, though not in terms declared, is nevertheless in 
its elements at least contained in the decision. The qualified sov- 
ereignty, national and State, the subordination of State to nation, 
the position of the citizen as at once a necessary component part of 
the federal and of the State system, are all exhibited. It must 
logically follow that a nation as a sovereignty is possessed of all 
those powers of independent action and self-protection which the 
successors of Jay subsequently demonstrated were by implication 
conferred upon it." Cooley in Constitutional History as seen in 
American Law, 48, 49. 

"It is not rational to suppose that a sovereign power shall be 
dragged before a court. The intent is to enable States to recover 



616 CASES ON CONSTITUTIONAL LAW. 

claims of individuals residing in other States." John Marshall 
in the Virginia Convention of 1787, Elliot's Debates, III, 555. A 
similar opinion is expressed by Hamilton in The Federalist, No. 81. 

"The decision was pronounced on the 18th of February, 1793; 
two days afterward the Eleventh Amendment to the Constitution 
was proposed to Congress." Carson, The Supreme Court of the 
United States, 177. 

For an adverse criticism of the judgment rendered in this case, 
see the opinion of the court in Hans v. Louisiana, 134 U. S., 1. 



MAETIN, Heie at Law and Devisee of Faiefax, v. 
HUNTEE'S LESSEE. 

1 Wheaton, 304. Decided 1816. 
This case is fully stated in the opinion of the court. . . . 

Stoey, J., delivered the opinion of the court. 

This is a writ of error from the court of appeals of Virginia, 
founded upon the refusal of that court to obey the mandate of this 
court, requiring the judgment rendered in this very cause, at 
February term, 1813, to be carried into due execution. The fol- 
lowing is the judgment of the court of appeals rendered on the 
mandate: "The court is unanimously of opinion, that the appel- 
late power of the supreme court of the United States does not 
extend to this court, under a sound construction of the constitution 
of the L'nited States; that so much of the 25th section of the act 
of congress to establish the judicial courts of the United States, 
as extends the appellate jurisdiction of the supreme court to this 
court, is not in pursuance of the constitution of the United States; 
that the writ of error in this cause was improvidently allowed under 
the authority of that act; that the proceedings thereon in the 
supreme court were coram no7i judice, in relation to this court, and 
that obedience to its mandate be declined by the court." . . . 

Before proceeding to the principal questions, it may not be unfit 
to dispose of some preliminary considerations which have grown 
out of the arguments at the bar. 

The constitution of the United States was ordained and estab- 
lished, not by the States in their sovereign capacities, but emphat- 
ically, as the preamble of the constitution declares, by "the people 
of the United States." There can be no doubt that it was com- 



MARTIN V. HUNTER'S LESSEE. 617 

petent to the people to invest the general government with all the 
powers which they might deem proper and necessary; to extend 
or restrain these powers according to their own good pleasure, and 
to give them a paramount and supreme authority. As little doubt 
can there be, that the people had a right to prohibit to the States 
the exercise of any powers which were, in their judgment, incom- 
patible with the objects of the general compact; to make the 
powers of the state governments, in given cases, subordinate to 
those of the nation, or to reserve to themselves those sovereign 
authorities which they might not choose to delegate to either. The 
constitution was not, therefore, necessarily carved out of existing 
state sovereignties, nor a surrender of powers already existing in 
state institutions, for the powers of the States depend upon their 
own constitutions; and the people of every State had the right to 
modify and restrain them, according to their own views of policy 
or principle. On the other hand it is perfectly clear that the sov- 
ereign powers vested in the state governments, by their respective 
constitutions, remained unaltered and unimpaired, except so far as 
they were granted to the government of the United States. 

These deductions do not rest upon general reasoning, plain and 
obvious as they seem to be. They have been positively recognized 
by one of the articles in amendment of the constitution, which 
declares that "the powers not delegated to the United States by 
the constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people." 

The government, then, of the United States, can claim no 
powers which are not granted to it by the constitution, and the 
powers actually granted must be such as are expressly given, or 
given by necessary implication. On the other hand, this instru- 
ment, like every other grant, is to have a reasonable construction, 
according to the import of its terms; and where a power is ex- 
jiressly given in general terms, it is not to be restrained to par- 
ticular cases, unless that construction grows out of the context 
expressly, or by necessary implication. The words are to be taken 
in their natural and obvious sense, and not in a sense unreasonably 
restricted or enlarged. 

The constitution, unavoidably, deals in general language. It did 
not suit the purposes of the people, in framing this great charter 
of our liberties, to provide for minute specifications of its powers, 
or to declare the means by which those powers should be carried 
into execution. It was foreseen that this would be a perilous and 
difficult, if not an impracticable, task. The instrument was not 
intended to provide merely for the exigencies of a few years, but 



618 CASES ON CONSTITUTIONAL LAW. 

was to endure througli a long lapse of ages, the events of whieli 
were locked np in the inscrutable purposes of Providence. It 
could not be foreseen what new changes gind modifications of power 
might be indispensable to effectuate the general objects of the 
charter; restrictions and specifications, which at the present might 
seem salutary, might, in the end, prove the overthrow of the 
system itself. Hence its powers are expressed in general terms, 
leaving to the legislature, from time to time, to adopt its own 
means to effectuate legitimate objects, and to mould and model 
the exercise of its powers, as its own wisdom and the public interests 
should require. 

With these princiiDles in view, principles in respect to which 
no difference of opinion ought to be indulged, let us now proceed 
to the interpretation of the constitution, so far as regards the 
great points in controversy. 

The third article of the constitution is that which must princi- 
pally attract our attention. . . . 

This leads us to the consideration of the great question as to the 
nature and extent of the appellate jurisdiction of the United 
States. "We have already seen that appellate jurisdiction is given 
by the constitution to the supreme court in all cases where it has 
not original jurisdiction, subject, however, to such exceptions and 
regulations as congress may prescribe. It is, therefore, capable of 
embracing every case enumerated in the constitution, which is not 
exclusively to be decided by way of original jurisdiction. But the 
exercise of appellate jurisdiction is far from being limited by the 
terms of the constitution to the supreme court. There can be no 
doubt that congress may create a succession of inferior tribunals, 
in each of which it may vest appellate as well as original jurisdic- 
tion. The judicial power is delegated by the constitution in the 
most general terms, and may, therefore, be exercised by congress 
under every variety of form, of appellate or original jurisdiction. 
And as there is nothing in the constitution which restrains or 
limits this power, it must, therefore, in all other cases, subsist in 
the utmost latitude of which, in its own nature, it is susceptible. 

As, then, by the terms of the constitution, the appellate jurisdic- 
tion is not limited as to the supreme court, and as to this court 
it may be exercised in all other cases than those of which it has 
original cognizance, what is there to restrain its exercise over state 
tribunals in the enumerated cases? The appellate power is not 
limited by the terms of the third article to any particular courtvS. 
The words are, "the judicial power (which includes appellate 
power) shall extend to all cases," &c., and "in all other cases be- 



MARTIN V. HUNTER'S LESSEE. 619 

fore mentioned the supreme court shall have appellate jurisdiction.'' 
It is the case, then, and not the court,- that gives the jurisdiction. 
If the judicial power extends to the case, it will be in vain to search 
in the letter of the constitution for any qualifications as to the 
tribunal where it depends. It is incumbent, then, upon those 
who assert such a qualification to show its existence by necessary 
implication. If the text be clear and distinct, no restriction upon 
its plain and obvious import ought to be admitted, unless the in- 
ference be irresistible. 

If the constitution meant to limit the appellate jurisdiction to 
cases pending in the courts of the United States, it would neces- 
sarily follow that the jurisdiction of these courts would, in all 
the cases enumerated in the constitution, be exclusive of state 
tribunals. How otherwise could the jurisdiction extend to all cases 
arising under the constitution, laws, and treaties of the United 
States, or to all cases of admiralty and maritime jurisdiction? If 
some of these cases might be entertained by state tribunals, and no 
appellate jurisdiction as to them should exist, then the appellate 
power would not extend to all, but to some, cases. If state tribunals 
might exercise concurrent jurisdiction over all or some of the 
other classes of cases in the constitution without control, then 
the appellate jurisdiction of the United States, might, as to such 
cases, have no real existence, contrary to the manifest intent of the 
constitution. Under such circumstances, to give eifect to the judi- 
cial power, it must be construed to be exclusive; and this not only 
when the casus foederis should arise directly, but when it should 
arise, incidentally, in cases pending in state courts. This construc- 
tion would abridge the jurisdiction of such court far more than 
has been ever contemplated in any act of congress. 

On the other hand, if, as has been contended, a discretion be 
vested in congress to establish, or not to establish, inferior courts 
at their own pleasure, and congress should not establish such courts, 
the appellate jurisdiction of the supreme court would have noth- 
ing to act upon, unless it could act upon cases pending in the 
state courts. Under such circumstances, it must be held that the 
appellate power would extend to state courts; for the constitution 
is peremptory that it shall extend to certain enumerated cases, 
which cases could exist in no other courts. Any other construc- 
tion, upon this supposition, would involve this strange contradic- 
tion, that a discretionary power vested in congress, and which they 
might rightfully omit to exercise, would defeat the absolute in- 
junctions of the constitution in relation to the whole appellate 
power. 



630 CASES ON CONSTITUTIONAL LAW. 

But it is plain that the framers of the constitution did contem- 
plate that cases within the judicial cognizance of the United States 
not only might but would arise in the state courts, in the exercise 
of their ordinary jurisdiction. With this view the sixth article 
declares, that "this constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties made, 
or which shall be made, under the authority of the United States, 
shall be the supreme law of the land, and the judges in every State 
shall be bound thereby, anything in the constitution, or laws of 
any State to the contrary notwithstanding." It is obvious that this 
obligation is imperative upon the state judges in their official, and 
not merely in their private, capacities. From the very nature of 
their judicial duties they would be called upon to pronounce the 
law applicable to the case in judgment. They were not to decide 
merely according to the laws or constitution of the State, but 
according to the constitution, laws, and treaties of the United 
States, "the supreme law of the land." 

A moment's consideration will show us the necessity and pro- 
priety, of this provision in cases where the jurisdiction of the state 
courts is unquestionable. Suppose a contract for the payment 
of money is made between citizens of the same State, and per- 
formance thereof is sought in the courts of that State; no person 
can doubt that the jurisdiction completely and exclusively attaches, 
in the first instance, to such courts. Suppose, at the trial, the 
defendant sets up in his defense a tender under a state law, mak- 
ing paper money a good tender, or a state law, impairing the obliga- 
tion of such contract, which law, if binding, would defeat the suit. 
The constitution of the United States has declared that no State 
shall make anything but gold or silver coin a tender in payment of 
debts, or pass a law impairing the obligation of contracts. If 
congress shall not have passed a law providing for the removal 
of such a suit to the courts of the United States, must not the 
state court proceed to hear and determine it? Can a mere plea 
in defense be of itself a bar to further proceedings, so as to pro- 
hibit an inquiry into its truth or legal propriety, when no other 
tribunal exists to whom judicial cognizance of such cases is con- 
fided? Suppose an indictment for a crime in a state court, and 
the defendant should allege in his defense that the crime was 
created by an ex post facto act of the State, must not the state 
court, in the exercise of a jurisdiction which has already rightfully 
attached, have a right to pronounce on the validity and sufficiency 
of the defense? It would be extremely difficult, upon any legal 
principles, to give a negative answer to these inquiries. Innumer- 



MARTIN V. HUNTER'S LESSEE. 621 

able instances of the saine sort might be stated in illustration of 
the jiosition; and unless the state courts could sustain jurisdiction 
in such cases, this clause of the sixth article -would be without 
meaning or effect, and public mischiefs, of a most enormous mag- 
nitude, would inevitably ensue. 

It must, therefore, be conceded that the constitution not only 
contemplated, but meant to provide for cases within the scope of 
the judicial power of the United States, which might yet depend 
before state tribunals. It was foreseen that in the exercise of their 
ordinary jurisdiction, state courts would incidentally take cog- 
nizance of cases arising under the constitution, the laws, and 
treaties of the United States. Yet to all these cases the judicial 
power, by the very terms of the constitution, is to extend. It can- 
not extend by original jurisdiction if that was already rightfully 
and exclusively attached in the state courts, which (as has been 
already shown) may occur; it must therefore extend by appellate 
jurisdiction, or not at all. It would seem to follow that the 
appellate power of the United States must, in such cases, extend 
to state tribunals; and if in such cases, there is no reason why 
it should not equally attach upon all others within the purview 
of the constitution. 

It has been argued that such an appellate jurisdiction over state 
<;ourts is inconsistent with the genius of our governments, and the 
spirit of the constitution. That the latter was never designed to 
act upon state sovereignties, but only upon the people, and that, 
if the power exists, it will materially impair the sovereignty of 
the States, and the independence of their courts. We cannot 
yield to the force of this reasoning; it assumes principles which 
we cannot admit, and draws conclusions to which we do not yield 
our assent. 

It is a mistake that the constitution was not designed to operate 
upon States, in their corporate capacities. It is crowded with pro- 
visions which restrain or annul the sovereignty of the States in 
some of the highest branches of their prerogatives. The tenth sec- 
tion of the first article contains a long list of disabilities and pro- 
hibitions imposed upon the States. Surely, when such essential 
portions of state sovereignty are taken away, or prohibited to be 
exercised, it cannot be correctly asserted that the constitution does 
not act upon the States. The language of the constitution is also 
imperative upon the States, as to the performance of many duties. 
It is imperative upon the state legislatures to make laws prescribing 
the time, places, and manner of holding elections for senators and 
representatives, and for electors of president and vice-president. 



622 CASES ON CONSTITUTIONAL LAW. 

And in these, as ^^■eil as in some otlier cases, congress have a right 
to revise, amend, or supersede the laAvs which may be passed by 
state legislatures. "Wlien, therefore, the States are stripped of 
some of the highest attributes of sovereignty, and the same are 
given to the United States; when the legislatures of the States 
are, in some respects, under the control of congress, and in every 
case are, under the constitution, bound by the paramount authority 
of the United States; it is certainly difficult to support the argu- 
ment that the appellate power over the decisions of state courts is 
contrary to the genius of our institutions. The courts of the United 
States can, without question, revise the proceedings of the execu- 
tive and legislative authorities of the States, and if they are found 
to be contrary to the constitution, may declare them to be of no 
legal validity. Surely, the exercise of the same right over Judicial 
tribunals is not a higher or more dangerous act of sovereign power. 

Xor can such a right be deemed to impair the independence of 
state judges. It is assuming the very ground in controversy to 
assert that they possess an absolute independence of the United 
States. In respect to the powers granted to the United States, 
they are not independent; they are expressly bound to obedience 
by the letter of the constitution; and if they should unintention- 
ally transcend their authority, or misconstrue the constitution, 
there is no more reason for giving their judgments an absolute 
and irresistible force, than for giving it to the acts of the other 
co-ordinate departments of state sovereignty. 

The argument urged from the possibility of the abuse of the 
revising power, is equally unsatisfactory. It is always a doubtful 
course, to argue against the use or existence of a power, from the 
possibility of its abuse. It is still more difficult, by such an argu- 
ment, to engraft upon a general power, a restriction which is not 
to be found in the terms in which it is given. From the very 
nature of things, the absolute right of decision, in the last resort, 
must rest somewhere — wherever it may be vested it is susceptible 
of abuse. In all questions of jurisdiction the inferior, or appellate 
court must pronounce the final judgment; and common-sense, as 
well as legal reasoning, has conferred it upon the latter. 

It has been further argued against the existence of this appellate 
power, that it would form a novelty in our judicial institutions. 
This is certainly a mistake. In the articles of confederation, an 
instrument framed with infinitely more deference to state rights 
and state jealousies, a power was given to congress, to establish 
'•'courts for revising and determining, finally, appeals in all cases 
of captures." It is remarkable, that no power was given to enter- 



MARTIN V. HUNTER'S LESSEE. 623 

tain original jurisdiction in such cases; and, consequently, the ap- 
pellate power (although not so expressed in terms) was altogether 
to be exercised in revising the decisions of state tribunals. This 
was, undoubtedly, so far a surrender of state sovereignty; but it 
never was supposed to be a power fraught with public danger, or 
destructive of the independence of state judges. On the contrary, 
it was supposed to be a power indispensable to the public safety, 
inasmuch &s our national rights might otherwise be compromitted, 
and our national peace be endangered. Under the present consti- 
tution the prize jurisdiction is confined to the courts of the United 
States; and a power to revise the decisions of state courts, if they 
should assert jurisdiction over prize causes, cannot be less impor- 
tant, or less useful, than it was under the confederation. 

In this connection, we are led again to the construction of the 
words of the constitution, "the judicial power shall extend," etc. 
If, as has been contended at the bar, the term "extend" have 
a relative signification, and mean to widen an existing power, it 
will then follow, tliat, as the confederation gave an appellate power 
over state tribunals, the constitution enlarged or widened that ap- 
pellate power to all the other cases in which jurisdiction is given 
to the courts of the United States. It is not presumed that the 
learned counsel would choose to adopt such a conclusion. 

It is further argued, that no great public mischief can result 
from a construction which shall limit the appellate power of the 
United States to cases in their own courts: first, because state 
judges are bound by an oath to support the constitution of the 
United States, and must be presumed to be men of learning and 
integrity; and, secondly, because congress must have an unques- 
tionable right to remove all cases within the scope of the judicial 
power, from the state courts to the courts of the United States, 
at any time before final judgment, though not after final judgment. 
As to the first reason — admitting that the judges of the state courts 
are, and always will be, of as much learning, integi'ity, and wis- 
dom, as those of the courts of the United States (which we very 
cheerfully admit), it does not aid the argument. It is manifest 
that the constitution has proceeded upon a theory of its own, and 
given or withheld powers according to the judgment of the Amer- 
ican people, by whom it was adopted. We can only construe its 
powers, and cannot inquire into the policy or principles which 
induced the grant of them. The constitution has presumed 
(whether rightly or wrongly we do not inquire) that state attach- 
ments, state prejudices, state jealousies, and state interests, might 
sometimes obstruct, or control, or be supposed to obstruct or con- 



624: CASES ON CONSTITUTIONAL LAW. 

trol, the regular administration of justice. Hence, in controver- 
sies between States; between citizens of different States; between 
citizens claiming grants under different States; between a State 
and its citizens, or foreigners, and between citizens and foreigners, 
it enables the parties, under the authority of congress, to have 
the controversies heard, tried, and determined before the national 
tribunals. Xo other reason than that which has been stated can 
be assigned, why some, at least, of those cases should not have been 
left to the cognizance of the state courts. In respect to the other 
enumerated cases — the cases arising under the constitution, laws, 
and treaties of the United States, cases affecting ambassadors and 
other public ministers, and cases of admiralty and maritime juris- 
diction — ^reasons of a higher and more extensive nature, touch- 
ing the safety, peace, and sovereignty of the nation, might well 
justify a grant of exclusive jurisdiction. 

This is not all. A motive of another kind, perfectly compatible 
with the most sincere respect for state tribunals, might induce the 
grant of appellate power over their decisions. That motive is the 
importance, and even necessity of uniformity of decisions through- 
out the whole United States, upon all subjects within the purview 
of the constitution. Judges of equal learning and integrity, in 
different States, might differently interpret a statute, or a treaty 
of the United States, or even the constitution itself. If there 
were no revising authority to control these jarring and discordant 
judgments, and harmonize them into uniformity, the laws, the 
treaties, and the constitution of the United States would be differ- 
ent in different States, and might perhaps never have precisely 
the same construction, obligation, or efficacy, in any two States. 
The public mischiefs that would attend such a^tate of things would 
be truly deplorable; and it cannot be believed that they could have 
escaped the enlightened convention which formed the constitu- 
tion. What, indeed, might then have been only prophecy has noAV 
become fact; and the appellate jurisdiction must continue to be. 
the only adequate remedy for such evils. 

There is an additional consideration, which is entitled to great 
weight. The constitution of the United States was designed for 
the common and equal benefit of all the people of the United States. 
The judicial power was granted for the same benign and salutarj 
purposes. It was not to be exercised exclusively for the benefit 
of parties who might be plaintiffs, and would elect the national 
forum, but also for the protection of defendants who might be 
entitled to try their rights, or assert their privileges, before the 
same forum. Yet, if the construction contended for be correct. 



MARTIN V. HUNTER'S LESSEE. 625 

it will follow, that as the plaintiff may always elect the state court, 
the defendant may be deprived of all the security which the con- 
stitution intended in aid of his rights. Such a state of things 
can, in no respect, be considered as giving equal rights. To obviate 
this difficulty, we are referred to the power which it is admitted 
congress possess to remove suits from state courts to the national 
courts; and this forms the second ground upon which the argu- 
ment we are considering has been attempted to be sustained. 

This power of removal is not to be found in express terms in 
any part of the constitution; if it be given, it is only given by 
implication, as a power necessary and proper to carry into efEect 
some express power. The power of removal is certainly not, in 
strictness of language; it presupposes an exercise of original juris- 
diction to have attached elsewhere. The existence of this power of 
removal is familiar in courts acting according to the course of the 
common law in criminal as well as civil cases, and it is exercised 
before as well as after judgment. But this is always deemed in 
both cases an exercise of appellate, and not of original jurisdiction. 
If, then, the right of removal be included in the appellate jurisdic- 
tion, it is only because it is one mode of exercising that power, and 
as congress is not limited by the constitution to any particular 
mode, or time of exercising it, it may authorize a removal either 
before or after the judgment. The time, the process, and the man- 
ner, must be subject to its absolute legislative control. A writ 
of error is, indeed, but a process which removes the record of one 
court to the possession of another court, and enables the latter to 
inspect the proceedings, and give such judgment as its own 
opinion of the law and justice of the case may warrant. There 
is. nothing in the nature of the process which forbids it from being 
applied, by the legislature, to interlocutory as well as final judg- 
ments. And if the right of removal from state courts exis'ts be- 
fore judgment, because it is included in the appellate power, it 
must, for the same reason, exist after judgment. And if the 
appellate power by the constitution does not include cases pend- 
ing in state courts, the right of removal, which is but a mode of 
exercising that power, cannot be applied to them. Precisely the 
same objections, therefore, exist as to the right of removal before 
judgment as after, and both must stand or fall together. Nor, 
indeed, would the force of the arguments on either side materially 
vary, if the right of removal were an exercise of original jurisdic- 
tion. It would equally trench upon the jurisdiction and inde- 
pendence of state tribunals. 

The remedy, too, of removal of suits would be utterly inadequate 

40 



636 CASES ON CONSTITUTIONAL LAW. 

to the purposes of the constitution^ if it could act only on the 
parties, and not upon the state courts. In respect to criminal 
prosecutions, the difficulty seems admitted to be insurmountable; 
and, in respect to civil suit5, there would, in many cases, be rights 
"U'ithout con-esponding remedies. If state courts should deny the 
constitutionality of the authority to remove suits from their cog- 
nizance, in Tvhat manner could they be compelled to relinquish 
the jurisdiction? In respect to criminal cases, there -n-ould at 
once be an end of all control, and the state decisions would be para- 
mount to the constitution; and though in civil suits the courts of 
the United States might act upon the parties, yet the Sifate courts 
might act in the same way; and this conflict of jurisdictions 
would not onl}^ jeopardize private rights, but bring into imminent 
peril the public interests. 

On the whole, the court are of opinion, that the appellate power 
of the United States does extend to cases pending in the state 
courts; and that the 25th section of the Judiciary Act, which 
authorizes the exercise of this jurisdiction in the specified cases, 
by a writ of error, is supported by the letter and spirit of the con- 
stitution. TVe find no clause in that instrument which limits this 
power; and we dare not interpose a limitation where the people 
have not been disposed to create one. 

Strong as this conclusion stands upon the general language of 
the constitution, it may still derive support from other sources. 
It is an historical fact, that this exposition of the constitution, 
extending its appellate power to state courts, was, previous to its 
adoption, uniformly and publicly avowed by its friends, and ad- 
mitted by its enemies, as the basis of their respective reasonings, 
both in and out of the state conventions. It is an historical fact, 
that at the time when the Judiciary Act was submitted to the 
deliberations of the first congress, composed, as it was, not only 
of men of great learning and ability, but of men who had acted 
a principal part in framing, supporting, or opposing that consti- 
tution, the same exposition was explicitly declared and admitted 
hx the friends and by the opponents of that system. It is an his- 
torical fact, that the supreme court of the United States have, from 
time to time, sustained this appellate jurisdiction in a great variety 
of cases, brought from the tribunals of many of the most impor- 
tant States in the Union, and that no state tribunal has ever 
breathed a judicial doubt on the subject, or declined to obey the 
mandate of the supreme court, until the present occasion. This 
weight of contemporaneous exposition by all parties, this acquies- 
cence of enhghtened state courts, and these judicial decisions of 



COHENS V. VIRGINIA. 627 

the supreme court through so long a period, do, as we think, place 
the doctrine upon a foundation of authority which cannot be 
shaken, without delivering over the subject to perpetual and ir- 
remediable doubts. . . . 

It is the opinion of the whole court, that the judgment of the 
court of appeals of Virginia^ rendered on the mandate in this 
cause, be reversed, and the judgment of the district court, held at 
Winchester, be, and the same is hereby affirmed. 

[Mr. Justice Johnson delivered a concurring opinion.] 



COHENS V. THE STATE OF VIEGINIA. 
6 Wheaton, 264. Decided 1821. 
[The facts are sufficiently stated in the opinion of the court.] 

Marshall, C. J., delivered the opinion of the court. 

This is a writ of error to a judgment rendered in the court of 
Hustings, for the borough of Norfolk, on an information for sell- 
ing lottery tickets, contrary to an act of the legislature of Vir- 
ginia. In the state court, the defendant claimed the protection 
of an act of congress. A case was agreed between the parties, 
which states the act of assembly on which the prosecution was 
founded, and the act of congress on which the defendant relied, 
and concludes in these words: "If upon this case the court shall 
be of opinion that the acts of congress before mentioned were valid, 
and, on the true construction of those acts, the lottery tickets sold 
by the defendants as aforesaid, might lawfully be sold within the 
State of Virginia, notwithstanding the act or statute of the general 
assembly of Virginia prohibiting such sale, then judgment to be 
entered for the defendants. And if the court should be of opin- 
ion that the statute or act of the general assembly of the State 
of Virginia, prohibiting such sale, is valid, notwithstanding the 
said acts of congress, then judgment to be entered that the defend- 
ants are guilty, and that the commonwealth recover against them 
one hundred dollars and costs." 

Judgment was rendered against the defendants; and the court 
in which it was rendered being the highest court of the State in 
which the cause was cognizable, the record has been brought into 
this court by writ of error. 



628 CASES ON CONSTITUTIONAL LAW. 

The defendant in error moves to dismiss this writ, for want of 
jurisdiction. 

In support of this motion, three points have heen made, and 
argued with the ability which tlie importance of the question 
merits. These points are: — 

1. That a State is a defendant. 

2. That no writ of error lies from this court to a state court. 

3. The third point has heen presented in different forms by 
the gentlemen who have argued it. The counsel who opened the 
cause said that the want of jurisdiction was shown by the subject- 
matter of the case. The counsel who followed him said that juris- 
diction was not given by the Judiciary Act. The court has be- 
stowed all its attention on the arguments of both gentlemen, and 
supposes that their tendency is to show that this court has no 
jurisdiction of the case, or, m other words, has no right to review 
the judgment of the state court, because neither the constitution 
nor any law of the United States has been violated by that judg- 
ment. 

The questions presented to the court by the first two points 
made at the bar are of great magnitude, and may be truly said 
vitally to affect the Union. They exclude the inquiry whether the 
constitution and laAvs of the United States have been violated by 
the judgment which the plaintiffs in error seek to review; and 
maintain that, admitting such violation, it is not in the power 
of the government to apply a corrective. They maintain that the 
nation does not possess a department capable of restraining peace- 
ably, and by authority of law, any attempts which may be made, 
by a part, against the legitimate powers of the whole; and that the 
government is reduced to the alternative of submitting to such 
attempts, or of resisting them by force. They maintain that the 
constitution of the United States has provided no tribunal for 
the final construction of itself, or of the laws or treaties of the 
nation; but that this power may be exercised in the last resort 
by the courts of everj^ State in the Union. That the constitution, 
laws, and treaties, may receive as many constructions as there are 
States; and that this is not a mischief, or, if a mischief, is irre- 
mediable. These abstract propositions are to be determined; for 
he who demands decision without permitting inquiry, affirms that 
the decision he asks does not depend on inquiry. 

If such be the constitution, it is the duty of the court to bow 
with respectful submission to its provisions. If such be not the 
constitution, it is equally the duty of this court to say so; and 



COHENS V. VIRGINIA. 629 

to perform that task which the American people have assigned to 
the judicial department. 

1. The first question to be considered is, whether the jurisdic- 
tion of this court is excluded by the character of the parties, one 
of them being a State, and the other a citizen of that State? 

The 2S section of the third article of the constitution defines 
the extent of the judicial power of the United States, Jurisdiction 
is given to the courts of the Union in two classes of cases. In the 
first, their jurisdiction depends on the character of the cause, 
whoever may be the parties. This class comprehends "all cases 
in law and equity arising under this constitution, the laws of the 
United States, and treaties made, or which shall be made, under 
their authority." This clause extends the jurisdiction of the court 
to all the cases described, without making in its terms any exception 
whatever, and without any regard to the condition of the party. 
If there be any exception, it is to be implied against the express 
words of the article. 

In the second class, the jurisdiction depends entirely on the 
character of the parties. In this are comprehended "controversies 
between two or more States, between a State and citizens of an- 
other State," "and between a State and foreign states, citizens, or 
subjects." If these be the parties, it is entirely unimportant what 
may be the subject of controversy. Be it what it may, these par- 
ties have a constitutional right to come into the courts of the 
Union. 

The counsel for the defendant in error have stated that the cases 
which arise under the constitution must grow out of those pro- 
visions which are capable of self-execution; examples of which are 
to be found in the second section of the fourth article, and in the 
tenth section of the first article. 

A ease which arises under a law of the United States must, we 
are likewise told, be a right given by some act which becomes 
necessary to execute the powers given in the constitution, of which 
the law of naturalization is mentioned as an example. 

The use intended to be made of this exposition of the first part 
of the section, defining the extent of the judicial power, is not 
clearly understood. If the intention be merely to distinguish cases 
arising under the constitution, from those arising under a law, for 
the sake of precision in the application of this argument, these 
propositions will not be controverted. If it be to maintain that 
a case arising under the constitution, or a law, must be one in 
which a party comes into court to demand something conferred 
on him by the constitution or a law, we think the construction 



630 CASES ON CONSTITUTIONAL LAW. 

too narrow. A case in law or equity consists of the right of the 
one party, as well as of the other, and may truly be said to arise 
under the constitution or a law of the United States, whenever its 
correct decision depends on the construction of either. Congress 
seems to have intended to give its own construction of this part 
of the constitution, in the 25th section of the Judiciary Act; and 
we perceive no reason to depart from that construction. 

The jurisdiction of the court, then, being extended by the letter 
of the constitution to all cases arising under it, or under the laws 
of the United States, it follows that those who would withdraw 
any case of this description from that jurisdiction, must sustain 
the exemption they claim on the spirit and true meaning of the 
constitution, which spirit and true meaning must be so apparent 
as to overrule the words which its framers have employed. 

The counsel for the defendant in error have undertaken to do 
this; and have laid down the general proposition, that a sover- 
eign independent State is not suable, except by its own consent. 

This general proposition will not be controverted. But its con- 
sent is not requisite in each particular case. It may be given in a 
general law. And if a State has surrendered any portion of its 
sovereignty, the question whether a liability to suit be a part of 
this portion, depends on the instrument by which the surrender is 
made. If upon a just construction of that instrument, it shall 
appear that the State has submitted to be sued, then it has parted 
with this sovereign right of judging in every case on the justice 
of its own pretensions, and has intrusted that power to a tribunal 
in whose impartiality it confides. 

The American States, as well as the American people, have be- 
lieved a close and firm Union to be essential to their liberty and to 
their happiness. They have been taught by experience, that this 
Union cannot exist without a government for the whole; and they 
have been taught by the same experience that this government 
would be a mere shadow, that must disappoint all their hopes, 
unless invested with large portions of that sovereignty which be- 
longs to independent States. Under the influence of this opinion, 
and thus instructed by experience, the American people, in the 
conventions of their respective States, adopted the present consti- 
tution. 

If it could be doubted whether, from its nature, it were not 
supreme in all cases where it is empowered to act, that doul:)t 
would be removed by the declaration that "this constitution, and 
the laws of the United States which shall be made in pursuance 
thereof, and all treaties made, or which shall be made, under the 



COHENS V. VIRGINIA. 631 

autliority of the United States, shall be the supreme law of the 
land; and the judges in every State shall be bound thereby, any- 
thing in the constitution or laws of any State to the contrary not- 
withstanding." 

This is the authoritative language of the American people; and, 
if gentlemen please, of the American States. It marks with lines 
too strong to be mistaken, the characteristic distinction between 
the government of the Union and those of the States. The gen- 
eral government, though limited as to its objects, is supreme with 
respect to those objects. This principle is a part of the constitu- 
tion; and if there be any who deny its necessity, none can deny 
its authority. 

To this supreme government ample powers are confided; and 
if it were possible to doubt the great purposes for which they were 
so confided, the people of the United States have declared that 
they are given "in order to form a more perfect union, establish 
justice, insure domestic tranquillity, provide for the common de- 
fense, promote the general welfare, and secure the blessings of 
liberty to themselves and their posterity." 

With the ample powers confided to this supreme government, 
for these interesting purposes, are connected many express and 
important limitations on the sovereignty of the States, which are 
made for the same purposes. The powers of the Union on the 
great subjects of war, peace, and commerce, and on many others, 
are in themselves limitations of the sovereignty of the States; but 
in addition to these, the sovereignty of the States is surrendered 
in many instances where the surrender can only operate to the 
benefit of the people, and where, perhaps, no other power is con- 
ferred on congress than a conservative power to maintain the prin- 
ciples established in the constitution. The maintenance of these 
principles in their purity is certainly among the great duties of 
the government. One of the instruments by which this duty may 
be peaceably performed is the judicial department. It is author- 
ized to decide all cases, of every description, arising under the 
constitution or laws of the United States. From this general grant 
of jurisdiction, no exception is made of those cases in which a 
State may be a party. When we consider the situation of the 
government of the Union and of a State, in relation to each other; 
the nature of our constitution, the subordination of the state gov- 
ernments to the constitution; the great purpose for which juris- 
diction over all cases arising under the constitution and laws of 
the United States, is confided to the judicial department, are we 
at liberty to insert in this general grant, an exception of those 



633 CASES ON CONSTITUTIONAL LAW. 

cases in which a State may be a party? "Will the spirit of the con- 
stitution justify this attempt to control its words? We think it 
will not. We think a case arising under the constitution or laws 
of the United States, is cognizable in the courts of the Union, who- 
ever may be the parties to that case. . . . 

It is most true that this court will not take jurisdiction if it 
should not; but it is equally true, that it must take jurisdiction 
if it should. The judiciary cannot, as the legislature may, avoid 
a measure because it approaches the confines of the constitution. 
We cannot pass it by because it is doubtful. With whatever doubts, 
with whatever difficulties, a case may be attended, we must decide 
it, if it be brought before us. We have no more right to decline 
the exercise of jurisdiction which is given, than to usurp that 
which is not given. The one or the other would be treason to the 
constitution. Questions may occur which we would gladly avoid; 
but we cannot avoid them. All we can do is, to exercise our best 
judgment, and conscientiously to perform our duty. In doing 
this on the present occasion, we find this tribunal invested with 
appellate jurisdiction in all cases arising under the constitution 
and laws of the United States. We find no exception to this grant, 
and we cannot insert one. . . . 

We think, then, that as the Constitution originally stood, the 
appellate jurisdiction of this court, in all cases arising under the 
constitution, laws, or treaties of the United States, was not ar- 
rested by the circumstance that a State was a party. 

This leads to a consideration of the 11th amendment. 

It is in these words: "The judicial power of the United States 
shall not be construed to extend to any suit in law or equity com- 
menced or prosecuted against one of the United States, by citizens 
of another State, or by citizens or subjects of any foreign State." 

It is a part of our history, that, at the adoption of the con- 
stitution, all the States were greatly indebted; and the apprehen- 
sion that these debts might be prosecuted in the federal courts, 
formed a very serious objection to that instrument. Suits were 
instituted; and the court maintained its jurisdiction. The alarm 
was general; and, to quiet the apprehensions that were so exten- 
sively entertained, this amendment was proposed in Congress, and 
adopted by the State legislatures. That its motive was not to 
maintain the sovereignty of a State from the degradation supposed 
to attend a compulsory appearance before the tribunal of the na- 
tion, may be inferred from the terms of the amendment. It does 
not comprehend controversies between two or more States, or be- 
tween a State and a foreign state. The jurisdiction of the court 



COHENS V. VIRGINIA. 633 

still extends to these cases; and in these a State may still be sued. 
We must ascribe the amendment, then, to some other cause than 
the dignity of a State. There is no difficulty in finding this cause. 
Those who were inhibited from commencing a suit against a State, 
or from prosecuting one which might be commenced before the 
adoption of the amendment, were persons who might probably be 
its creditors. There was not much reason to fear that foreign or 
sister States would be creditors to any considerable amount, and 
there was reason to retain the jurisdiction of the court in those 
cases, because it might be essential to the preservation of peace. 
The amendment, therefore, extended to suits commenced or prose- 
cuted by individuals, but not to those brought by States. 

The first impression made on the mind by this amendment is, 
that it was intended for those cases, and for those only, in which 
some demand against a State is made by an individual in the 
courts of the Union. If we consider the causes to which it is to be 
traced, we are conducted to the same conclusion. A general in- 
terest might well be felt in leaving to a State the full power of 
consulting its convenience in the adjustment of its debts, or of 
other claims upon it; but no interest could be felt in so changing 
the relations between the whole and its parts, as to strip the gov- 
ernment of the means of protecting, by the instrumentality of its 
courts, the constitution and laws from active violation. . . . 

Under the Judiciary Act,^ the effect of a writ of error is simply 
to bring the record into court, and submit the judgment of the 
inferior tribunal to re-examination. It does not in any manner 
act upon the parties; it acts only on the record. It removes the 
record into the supervising tribunal. Where, then, a State obtains 
a judgment against an individual, and the court rendering such 
judgment overrules a defense set up under the constitution or laws 
of the United States, the transfer of this record into the supreme 
court for the sole purpose of inquiring whether the judgment vio- 
lates the constitution of the United States, can, with no propriety, 
we think, be denominated a suit commenced or prosecuted against 
the State whose judgment is so far re-examined. Nothing is de- 
manded from the State. No claim against it of anv description is 
asserted or prosecuted. The party is not to be restored to the 
possession of anything. . . . He only asserts the constitu- 
tional right to have his defense examined by that tribunal whose 
province it is to construe the constitution and laws of the 
Union. ... 

1 1 Stats, at Large, 73. 



634 CASES ON CONSTITUTIONAL LAW. 

The point of view in which tliis writ of error, with its citation, 
has been considered uniformly in the courts of the Union, has 
been well illustrated by a reference to the course of this court in 
suits instituted by the United States. The universally received 
opinion is, that no suit can be commenced or prosecuted against 
the United States; that the Judiciary Act does not authorize such 
suits. Yet writs of error, accompanied with citations, have uni- 
formly issued for the removal of judgments in favor of the United 
States into a superior court, where they have, like those in favor 
of an individual, been re-examined, and afhnued or reversed. It 
has never been suggested that such a writ of error was a suit 
against the United States, and therefore not within the jurisdic- 
tion of the appellate court. 

It is, then, the opinion of the court, that the defendant who 
removes a judgment rendered against him by a state court into 
this court, for the purpose of re-examining the question whether 
that judgment be a violation of the constitution or laws of the 
United States, does not commence or prosecute a suit against the 
State, whatever may be its opinion where the effect of the writ 
may be to restore the party to the possession of a thing which he 
demands. 

But should we in this be mistaken, the error does not affect the 
case now before the court. If this writ of error be a suit in the 
sense of the 11th amendment, it is not a suit commenced or prose- 
cuted "by a citizen of another State, or by a citizen or subject of 
any foreign state." It is not then within the amendment, but is 
governed entirely by the constitution as originally framed, and we 
have already seen that, in its origin, the judicial power was ex- 
tended to all cases arising under the constitution or laws of. the 
United States, without respect to parties. 

2. The second objection to the jurisdiction of the court is, that 
its appellate power cannot be exercised, in any case, over the judg- 
ment of a state court. 

This objection is sustained chiefly by arguments drawn from the 
supposed total separation of the judiciary of a State from that of 
the Union, and their entire independence of each other. The 
argument considers the federal judiciary as completely foreign 
to that of a State; and as being no more connected with it, in 
any respect whatever, than the court of a foreign State. If this 
hypothesis be just, the argument founded on it is equally so; but 
if the hypothesis be not supported by the constitution, the argu- 
ment fails with it. 

This hypothesis is not founded on any words in the constitu- 



COHENS V. VIRGINIA. 635 

•tion, which might seem to countenance it, but on the unreason- 
ableness of giving a contrary construction to words which seem 
to require it; and on the incompatibihty of the application of the 
appellate jurisdiction to the judgments of state courts, with that 
constitutional relation w^hich subsists between the government of 
the Union and the governments of those States which compose it. 

Let this unreasonableness, this total incompatibility, be ex- 
amined. 

That the United States form, for many, and for most impor- 
tant purposes, a single nation, has not yet been denied. In war, 
we are one people. In making peace, we are one people. In all 
commercial regulations, we are one and the same people. In many 
other respects, the American people are one; and the govern- 
ment which is alone capable of controlling and managing their 
interests, in all these respects, is the government of the Union. 
It is their government, and in that character they have no other. 
America has chosen to be, in many respects, and to many pur- 
poses, a nation; and for all these purposes her government is com- 
plete; to all these objects, it is competent. The people have de- 
clared, that in the exercise of all powers given for these objects, 
it is supreme. It can, then, in effecting these objects, legiti- 
mately control all individuals or governments within the American 
territory. The constitution and laws of a State, so far as they 
are repugnant to the constitution and laws of the United States, 
are absolutely void. These States are constituent parts of the 
United States. They are members of one great empire, — for some 
purposes sovereign, for some purposes subordinate. 

In a government so constituted, is it unreasonable that the ju- 
dicial power should be competent to give efficacy to the constitu- 
tional laws of the legislature? That department can decide on the 
validity of the constitution or law of a State, if it be repugnant 
to the constitution or to a law of the United States. Is it unrea- 
sonable that it should also be empowered to decide on the judg- 
ment of a state tribunal enforcing such unconstitutional law? Is 
it so very unreasonable as to furnish a justification for controlling 
the words of the constitution? 

We think it is not. We think that in a government acknowl- 
edgedly supreme, with respect to objects of vital interest to the 
nation, there is nothing inconsistent with sound reason, nothing 
incompatible with the nature of government, in making all its 
departments supreme, so far as respects those objects, and so far as 
is necessary to their attainment. The exercise of the appellate 
power over those judgments of the state tribunals which may con- 



636 CASES ON CONSTITUTIONAL LAW. 

travene the constitution or laAvs of the United States, is, we believe, 
essential to the attainment of those objects. 

The propriety of intrusting the construction of the constitution, 
and laws made in pursuance thereof, to the judiciary of the Union, 
has not, we believe, as yet, been drawn into question. It seems 
to be a corollary from this political axiom, that the federal courts 
should either possess exclusive jurisdiction in such cases, or a 
power to revise the judgments rendered in them by the state 
tribunals. If the federal and state courts have concurrent juris- 
diction in all cases arising under the constitution, laws, and 
treaties of the United States; and if a case of this description 
brought in a state court cannot be removed before judgment, nor 
revised after judgment, then the construction of the constitution, 
laws, and treaties of the United States is not confided particularly 
to their judicial department, but is confided equally to that de- 
partment and to the state courts, however, they may be consti- 
tuted. "Thirteen independent courts," says a very celebrated 
'statesman (and we have now more than twenty such courts), "of 
final jurisdiction over the same causes, arising upon the same laws, 
is a hydra of government, from which nothing but contradiction 
and confusion can proceed." 

Dismissing the unpleasant suggestion, that any motives which 
may not be fairly avowed, or which ought not to exist, can ever 
influence a State or its courts, the necessity of uniformity, as well 
as correctness in expounding the constitution and laws of the 
United States, would itself suggest the propriety of vesting in 
some single tribunal the power of deciding, in the last resort, all 
cases in which they are involved. 

We are not restrained, then, by the political relations between 
the general and state governments, from construing the words of 
the constitution, defining the judicial power, in their true sense. 
We are not bound to construe them more restrictively than they 
naturally import. 

They give to the supreme court appellate jurisdiction in all cases 
arising under the constitution, laws, and treaties of the United 
States. The words are broad enough to comprehend all cases of 
this description, in whatever court they may be decided. . . . 
Let the nature and objects of our Union be considered; let the 
great fundamental principles on which the fabric stands be ex- 
amined; and we think the result must be that there is nothing so 
extravagantly absurd in giving to the court of the nation the power 
of revising the decisions of local tribunals, on questions which 



UNITED STATES v. TEXAS. 637 

affect the nation, as to require tliat words which import this power 
should be restricted by a forced construction. . . . 

Motion Denied. 
The cause was thereupon argued on the merits. . . . 

Judgment Affirmed. 



UNITED STATES v. TEXAS. 
143 U. S., 621. Decided 189'J. 

[The facts are sufficiently stated in the opinion of the court.] 

Me. Justice Haelan delivered the opinion of the court. 

This suit was brought by original bill in this court pursuant to 
the act of May 2, 1890, providing a temporary government for the 
Territory of Oklahoma. The 25th section recites the existence 
of a controversy between the United States and the State of Texas 
as to the ownership of what is designated on the map of Texas as 
Greer County, and provides that the act shall not be construed to 
apply to that county until the title to the same has been adjudi- 
cated and determined to be in the United States. In order that 
there might be a speedy and final judicial determination of this 
controversy the Attorney-General of the United States was author- 
ized and directed to commence and prosecute on behalf of the 
United States a proper suit in equity in this court against the State 
of Texas, setting forth the title of the United States to the country 
lying between the North and South Forks of the Eed Eiver where 
the Indian Tenitory and the State of Texas adjoin, east of the 
one hundredth degree of longitude, and claimed by the State of 
Texas as within its boundary. 26 Stat., 81, 92, c. 182, § 25. 

The State of Texas appeared and filed a demurrer, and, also, 
an answer denying the material allegations of the bill. The case 
is now before the court only upon the demurrer, the principal 
grounds of which are: That the question presented is political in 
its nature and character, and not susceptible of judicial deter- 
mination by this court in the exercise of its jurisdiction as con- 
ferred by the Constitution and laws of the United States; that 
it is not competent for the general government to bring suit against 
a State of the Union in one of its own courts, especially w^hen the 
right to be maintained is mutually asserted by the United States 
and the State, namely, the ownership of certain designated terri- 
tory; and that the plaintiff's cause of action, being a suit to recover 



638 CASES ON CONSTITUTIONAL LAW. 

real property, is legal and not equitable, and, consequently, so 
much of the act of May 2, 1890, as authorizes and directs the 
prosecution of a suit in equity to determine the rights of the 
United States to the territory in question is unconstitutional and 
void. . . . [Here follows a history of the conflicting claims 
of the United States and Texas.] 

The bill alleges that the State of Texas, without right, claims, 
has taken possession of, and endeavors to extend its laws and juris- 
diction over, the disputed territory, in violation of the treaty rights 
of the United States; that, during the year 1887, it gave public 
notice of its purpose to survey and place upon the market for sale, 
and otherwise dispose of, that territory; and that, in consequence 
of its proceeding to eject bona fide settlers from certain portions 
thereof. President Cleveland, by proclamation issued December 30, 
1887, warned all persons, whether claiming to act as officers of the 
county of Greer, or otherwise, against selling or disposing of, or 
attempting to sell or dispose of, any of said lands, or from exercis- 
ing or attempting to exercise any authority over them, and "against 
purchasing any part of said territory from any person or persons 
whatever." 25 Stat., 1183. 

The relief, asked is a decree determining the true line between 
the United States and the State of Texas, and whether the land 
constituting what is called "Greer County" is within the boundary 
and jurisdiction of the United States or of the State of Texas. 
The government prays that its rights, as asserted in the bill, be 
established, and that it have such other relief as the nature of the 
case may require. 

In support of the contention that the ascertainment of the 
boundary between a Territory of the United States and one of the 
States of the Union is political in its nature and character, and 
not susceptible of judicial determination, the defendant cites Fos- 
ter V. Neilson, 2 Pet., 253, 307, 309; Cherokee Nation v. Georgia, 
5 Pet., 1, 21; United States v. Arredondo, 6 Pet., 691, 711; and 
Garcia v. Lee, 12 Pet., 511, 517. 

In Foster v. Neilson, which was an action to recover certain 
lands in Louisiana, the controlhng question was as to whom the 
country between the Iberville and the Perdido rightfully belonged 
at the time the title of the plaintifE in that case was acquired. The 
United States, the court said, had perseveringly insisted that by 
the treaty of St. Ildefonso, made October 1, 1800, Spain ceded the 
disputed territory as part of Louisiana to France, and that France 
by the treaty of Paris of 1803 ceded it to the United States. Spain 
insisted that the cession to France comprehended only the territory 



UNITED STATES V. TEXAS. 639 

which was at that time denominated Louisiana. After examining 
various articles of the treaty of St. Ildefonso, Chief Justice Mar- 
shall, speaking for the court, said: "In a controversy between two 
nations concerning national boundary, it is scarcely possible that 
the courts of either should refuse to abide by the measures adopted 
by its own government. There being no common tribunal to de- 
cide between them, each determines for itself on its own rights, 
and if they cannot adjust their differences peaceably, the right 
remains with the strongest. The judiciary is not that department 
of the government to which the assertion of its interests against 
foreign powers is confided; and its duty commonly is to decide 
upon individual rights, according to those principles which the 
political departments of the nation have established. If the course 
of the nation has been a plain one, its courts would hesitate to 
pronounce it erroneous.*' Again: "After these acts of sovereign 
power over the territory in dispute, asserting the American con- 
struction of the treaty, by which the government claims it, to 
maintain the opposite construction in its own courts would cer- 
tainly be an anomaly in the history and practice of nations. If 
those departments which are trusted with the foreign intercourse 
of the nation, which assert and maintain its interests against for- 
eign powers, have unequivocally asserted its rights of dominion 
over a country of which it is in possession, and which it claims 
under a treaty; if the legislature has acted on the construction 
thus asserted, it is not in its own courts that this construction is 
to be denied. A question like this respecting the boundaries of 
nations, is, as has been truly said, more a political than a legal 
question; and, in its discussion, the courts of every count rj- must 
respect the pronounced will of the legislature." 

In United States v. Arredondo the court, referring to Foster v. 
Xeilson, said: "This court did not deem the settlement of boun- 
daries a judicial but a political question — that it was not its duty 
to lead, but to follow the action of the other departments of the 
government."' The same principles were recognized in Cherokee 
Xation v. Georgia and Garcia v, Lee. 

These authorities dx) not control the present case. They relate 
to questions of boundary between independent nations, and have 
no application to a question of that character arising between the 
General Government and one of the States composing the L'nion, 
or between two States of the L^nion. By the Articles of Confed- 
eration, Congress was made "the last resort on appeal in all dis- 
putes and differences" then subsisting or which thereafter might 
arise "between two or more States concerning boundary', jurisdic- 



6i0 CASES ON CONSTITUTIONAL LAW. 

tion, or any other cause whatever;" the authority so conferred to 
he exercised hy a special tribunal to he organized in the mode pre- 
scribed in those Articles, and its judgment to be final and con- 
clusive. Art. 9. At the time of the adoption of the Constitution, 
there existed, as this court said in Ehode Island v. Massachusetts, 
12 Pet., 657, 723, 724, controversies between eleven States, in re- 
spect to boundaries, which had continued from the first settle- 
ment of the colonies. The necessity for the creation of some tri- 
bunal for the settlement of these and like controversies that might 
arise, under the new government to be formed, must, therefore, 
have been perceived by the framers of the Constitution, and, con- 
sequently, among the controversies to which the judicial power of 
the United States was extended by the Constitution, we find those 
between two or more States. And that a controversy between two 
or more States, in respect to boundary, is one to which, under the 
Constitution, such judicial power extends, is no longer an open 
question in this court. The cases of Ehode Island v. Massachu- 
setts, 12 Pet., 657; Xew Jersey v. N"ew York, 5 Pet., 284, 290; Mis- 
souri V. Iowa, 7 How., 660; Florida v. G-eorgia, 17 How., 478; 
Alabama v. Georgia, 23 How., 505; Virginia v. West Virginia, 11 
Wall., 39, 55; ]\Iissouri v. Kentucky, 11 Wall., 395; Indiana v. 
Kentucky, 136 U. S., 479; and jSTebraska v. Iowa, ante, 359, were 
all original suits, in this court, for the judicial determination of dis- 
puted boundary lines between States. In Xew Jersey v. Xew York, 
5 Pet., 284, 290, Chief Justice Marshall said: "It has then been 
settled by our predecessors, on great deliberation, that this court 
may exercise its original jurisdiction in suits against a State, under 
the authority conferred by the Constitution and existing acts of 
Congress." And in Virginia v. West Virginia, it was said by Mr. 
Justice Miller to be the established doctrine of this court, "that 
it has jurisdiction of questions of boundary between two States of 
this Union, and that this jurisdiction is not defeated, because in 
deciding that question it becomes necessary to examine into and 
construe compacts or agreements between those States, or because 
the decree which the court may render, affects the territorial limits 
of the political jurisdiction and sovereignty of the States which. 
are parties to the proceeding." So, in Wisconsin v. Pelican Ins. 
Co., 127 U. S., 265, 287, 288: "By the Constitution, therefore, 
this court has original jurisdiction of suits brought by a State 
against citizens of another State, as well as of controversies between 
two States. ... As to 'controversies between two or more 
States.' The most numerous class of which this court has enter- 
tained jurisdiction is that of controversies between two States as 



UNITED STATES v. TEXAS. 611 

to the boundaries of their territory, such as were determined be- 
fore the Eevohition by the King in Council, and under the Articles 
of Confederation (while there was no national judiciary) by com- 
mittees or commissioners appointed by Congress." 

In view of these cases, it cannot, with propriety, be said that a 
question of boundary between a Territory of the United States and 
one of the States of the Union is of a political nature, and not 
susceptible of judicial determination by a court having jurisdic- 
tion of such a controversy. The important question therefore is, 
whether this court can, under the Constitution, take cognizance 
of an original suit brought by the United States against a State 
to determine the boundary between one of the Territories and 
such State. Texas insists that no such jurisdiction has been con- 
ferred upon this court, and that the only mode in which the pres- 
ent dispute can be peaceably settled is by agreement, in some form, 
between the United States and that State. Of course, if no such 
agreement can be reached — and it seems that one is not probable — 
and if neither party will surrender its claim of authority and juris- 
diction over the disputed territory, the result, according to the 
defendant's theory of the Constitution, must be that the United 
States, in order to effect a settlement of this vexed question of 
boundary, must bring its suit in one of the courts of Texas — that 
State consenting that its courts may be open for the assertion of 
claims against it by the United States — or that, in the end, there 
must be a trial of physical atrength between the government of the 
Union and Texas. The first alternative is unwarranted both by the 
letter and spirit of the Constitution. Mr. Justice Story has well 
said: "It scarcely seems possible to raise a reasonable doubt as to 
the propriety of giving to the national courts jurisdiction of cases 
in which the United States are a party. It would be a perfect 
novelty in the history of national jurisprudence, as well as of 
public law, that a sovereign had no authority to sue in his own 
courts. Unless this power were given to the United States, the 
enforcement of all their rights, powers, contracts and privileges 
in their sovereign capacity would be at the mercy of the States. 
They must be enforced, if at all, in the State tribunals." Story 
Const., § 1674. The second alternative, above mentioned, has no 
place in our constitutional system, and cannot be contemplated 
by any patriot except with feelings of deep concern. 

The cases in this court show that the framers of the Constitution 
did provide, by that instrument, for the judicial determination of 
all cases in law and equity between two or more States, including 
those involving questions of boundary. Did they omit to provide 

41 



642 CASES ON CONSTITUTIONAL LAW. 

for the judicial determination, of controversies arising between 
the United States and one or more of the States of the Union? 
This question is in effect answered by United States v. Xorth Caro- 
lina, 136 U. S., 211. That was an action of debt brought in this 
court by the United States against the State of Xorth Carolina, 
upon certain bonds issued by that State. The State appeared, the 
case was determined here upon its merits, and judgment was ren- 
dered for the State. It is true that no question was made as to the 
jurisdiction of this court, and nothing was therefore said in the 
opinion upon that subject. But it did not escape the attention 
of the court, and the judgment would not have been rendered 
except upon the theory that this court has original jurisdiction of 
a suit by the United States against a State. As, however, the 
question of jurisdiction is vital in this case, and is distinctly raised, 
it is proper to consider it upon its merits. . . . [Here follows 
a recital of art. 3, § 2, of the Constitution, and the 11th amend- 
ment.] 

It is apparent upon the face of these clauses that in one class 
of cases the jurisdiction of the courts of the Union depends '"on 
the character of the cause, whoever may be the parties," and, in 
the other, on the character of the parties, whatever may be the 
subject of controversy. Cohens v. Virginia, 6 Wheat., 26-1, 378, 393. 
The present suit falls in each class, for it is, plainly, one arising 
under the Constitution, laws and treaties of the United States, 
and, also, one in which the United States is a party. It is, there- 
fore, one to which, by the express words of the Constitution, the 
judicial power of the United States extends. That a Circuit Court 
of the United States has not jurisdiction, under existing statutes, 
of a suit by the United States against a State, is clear; for by the 
Eevised Statutes it is declared — as was done by the Judiciary Act 
of 1789 — thait "the Supreme Court shall have exclusive jurisdic- 
tion of all controversies of a civil nature "where a State is a party, 
except between a State and its citizens, or between a State and 
citizens of other States or aliens, in which latter cases it shall have 
original, but not exclusive, jurisdiction." Eev. Stat., § 687; Act 
of September 24, 1789, c. 20, § 13; 1 Stat., 80. Such exclusive 
jurisdiction was given to this court, because it best comported 
"u-ith the dignity of a State, that a case in which it was a party 
should be determined in the highest, rather than in a subordinate 
judicial tribunal of the nation. Wliy then may not this court take 
original cognizance of the present suit involving & question of 
boundar}' between a Territory of the United States and a State? 

The words in the Constitution, "in all cases ... in which 



UNITED STATES v. TEXAS. 643 

a State shall be party, the Supreme Court shall have original juris- 
dictiou/' necessarily refer to all eases mentioned in the preceding 
clause in which a State may be made, of right, a party defendant, 
or in which a State may, of right, be a party plaintiff. It is ad- 
mitted that these words do not refer to suits brought against a 
State by its own citizens or by citizens of other States, or by citi- 
zens or subjects of foreign States, even where such suits arise 
under the Constitution, laws and treaties of the United States, 
because the Judicial power of the United States does not extend 
to suits of individuals against States. Hans v. Louisiana, 134 
U. S., 1, and authorities there cited; North Carolina v. Temple, 
134 U. S., 23, 30. It is, however, said that the words last quoted 
refer only to suits in which a State is a party, and in which, also, 
the opposite party is another State of the Union or a foreign State. 
This cannot be correct, for it must be conceded that a State can 
bring an original suit in this court against a citizen of another 
State. Wisco- 3in v. Pelican Ins. Co., 127 U. S., 265, 287. Be- 
sides, unless a State is exempt altogether from suit by the United 
States, we do not perceive upon what sound rule of construction 
suits brought by the United States in this court — especially if they 
be suits the correct decision of which depends upon the Consti- 
tution, laws or treaties of the United States — are to be excluded 
from its original jurisdiction as defined in the Constitution. That 
instrument extends the judicial power of the United States- "to 
all cases," in law and equity, arising under the Constitution, laws 
and treaties of the United States, and to controversies in which 
the United States shall be a party, and confers upon this court 
original jurisdiction "in all cases" "in which a State shall be 
party," that is, in all cases mentioned in the preceding clause in 
which a State may, of right, be made a party defendant, as well 
as in all cases in which a State may, of right, institute a suit in a 
court of the United States. The present case is of the former 
class. We cannot assume that the framers of the Constitution, 
while extending the judicial power of the United States to con- 
troversies between two or more States of the Union, and between a 
State of the Union and foreign States, intended to exempt a State 
altogether from suit by the General Government. They could not 
have overlooked the possibility that controversies, capable of judi- 
cial solution, might arise between the United States and some of 
the States, and that the permanence of the Union might be en- 
dangered if to some tribunal was not intrusted the power to deter- 
mine them according to the recognized principles of law. And to 
what tribunal could a trust so momentous be more appropriately 



644 CASES ON CONSTITUTIONAL LAW. ' 

committed than to that which the people of the United States, in 
order to form a more perfect Union, establish justice and insure 
domestic tranquillity, have constituted with authority to speak for 
all the people and all the States, upon questions before it to which 
the judicial power of the nation extends? It would be difficult 
to suggest any reason why this court should have jurisdiction to 
determine questions of boundary between two or more States, but 
not jurisdiction of controversies of like character between the 
United States and a State. . . . [Here is given an extract 
from Hans v. Louisiana, 134 U. S., 1.] 

That case and others in this court relating to the suability of 
States, proceeded upon the broad ground that "it is inherent in 
the nature of sovereignty not to be amenable to the suit of an 
individual without its consent." 

The question as to the suability of one government by another 
government rests upon wholly different grounds. Texas is not 
called to the bar of this court at the suit of an individual, but at 
the suit of the government estabhshed for the common and equal 
benefit of the people of all the States. The submission to judicial 
solution of controversies arising between these two governments, 
"each sovereign, with respect to the objects committed to it, and 
neither sovereign with respect to the objects committed to 
the other," McCuUoch v. State of Maryland, 4 Wheat., 316, 
400, 410, but both subject to the supreme law of the land, does 
no violence to the inherent nature of sovereignty. The States 
of the Union have agreed, in the Constitution, that the judicial 
power of the United States shall extend to all cases arising under 
the Constitution, laws and treaties of the United States, withouit 
regard to the character of the parties (excluding, of course, suits 
against a State by its own citizens or by citizens of other States, 
or by citizens or subjects of foreign States), and equally to con- 
troversies to which the United States shall be a party, without 
regard to the subject of such controversies, and that this court 
may exercise original jurisdiction in all such cases, "in which a 
State shall be party," without excluding those in which the United 
States may be the opposite party. The exercise, therefore, by this 
court, of such original jurisdiction in a suit brought by one State 
against another to determine the boundary line between them, or 
in a suit brought by the United States against a State to deter- 
mine the boundary between a Territory of the United States and 
that State, so far from infringing, in either case, upon the sov- 
ereignty, is with the consent of the State sued. Such consent was 



UNITED STATES v. TEXAS. 645 

given by Texas when admitted into the Union upon an equal foot- 
ing in all respects with the other States. 

We are of opinion that this court has jurisdiction to determine 
the disputed question of boundary' between the United States and 
Texas. 

It is contended that, even if this court had jurisdiction, the dis- 
pute as to boundary must be determined in an action at law, and 
that the act of Congress requiring the institution of this suit in 
equity is unconstitutional and void, as, in effect, declaring that 
legal rights shall be tried and determined as if they were equitable 
rights. [Here follows a discussion of Fowler v. Lindsey, 3 DalL, 
411, and Ehode Island v. Massachusetts, 12 Pet., 657.] In view 
of these precedents, it is scarcely necessary for the court to exam- 
ine this question anew. Of course, if a suit in equity is appropriate 
for determining the boundary between two States, there can be 
no objection to the present suit as being in equity and not at law. 

It is not a suit simply to determine the legal title to, and the 
ownership of, the lands constituting Greer County. It invoh-es 
the larger question of governmental authority and jurisdiction 
over that territor}'. The United States, in effect, asks the specific 
execution of the terms of the treaty of 1819, to the end that the 
disorder and public mischiefs that will ensue from a continuance 
of the present condition of tilings may be prevented. The agree- 
ment, embodied in the treaty, to fix the lines with precision, and 
to place landmarks to designate the limits o^f the two contracting 
nations, could not well be enforced by an action at law. The bill 
and amended bill make a case for the interposition of a court of 
equity. Demurrer oi'emded. 

Mr. Chief Justice Fuller, with whom concurred Mr. Justice 
Lamar, dissenting. 

Mr. Justice Lamar and myself are unable to concur in the 
decision just announced. 

This court has original jurisdiction of two classes of cases only, 
those affecting ambassadors, other public ministers and consuls, 
and those in which a State shall be a party. 

The judicial power extends to "controversies between two or 
more States;" "between a State and citizens of another State;" 
and "between a State or the citizens thereof, and foreign States, 
citizens or subjects." Our original jurisdiction, which depends 
solely upon the character of the parties, is confined to the cases 



646 CASES ON CONSTITUTIONAL LAW. 

enumerated^ in which a State may be a party, and this is not one 
of them. 

The judicial power also extends to controversies to which the. 
United States shall be a party, but such controversies are not in- 
cluded in the grant of original jurisdiction. To the controversy 
here the United States is a party. 

We are of opinion, therefore, that this case it not within the 
original jurisdiction of the court. 



XV. POLITICAL QUESTIONS. 



LUTHEK V. BORDEN. 
7 Howard, 1. Decided 1848. 

The first of these cases came up by a writ of error, the second 
upon a certificate of division of opinion by the Judges of the cir- 
cuit court of the United States for the district of Ehode Island. 
The first case is stated in the opinion of the court. The second 
requires no statement, as it went off, for want of Jurisdiction. . . . 

Taxey, C. J., delivered the opinion of the court. 

This case has arisen out of the unfortunate political differ- 
ences which agitated the people of Rhode Island in 1841 and 1842. 

It is an action of trespass brought by Martin Luther, the plaint- 
iff in error, against Luther M. Borden and other defendants, in 
the circuit court of the United Sta;tes for the district of Rhode 
Island, for breaking and entering the plaintiff's house. The de- 
fendants Justify upon the ground that large numbers of men were 
assembled in different parts of the State for the purpose of over- 
throwing the government by military force, and were actually 
levying war upon the State; that, in order to defend itself from 
this insurrection, the State was declared by competent authority 
to be under martial law; that the plaintiff was engaged in the in- 
surrection; and that the defendants, being in the military service 
of the State, by command of their superior officer, broke and 
entered the house and searched the rooms for the plaintiff, who 
was supposed to be ithere concealed, in order to arrest him, doing 
as little damage as possible. The plaintiff replied, that the tres- 
pass was committed by the defendants of their own proper wrong, 
and without any such cause; and upon the issue joined on this 
replication, the parties proceeded to trial. . . . The existence 
and authority of the government under which the defendants acted, 
was called in question; and the plaintiff insists, that, before the 
acts complained of were committed, that government had been dis- 

647 



6J:8 CASES ON CONSTITUTIONAL LAW. 

placed and annulled by the people of Ehode Island, and that the 
plaintiff was engaged in supporting the lawful authority of the 
State, and the defendants themselves were in arms against it. . . 

The fourth section of the fourth article of the constitution of 
the United States provides that the United States shall guarantee 
to every State in the Union a republican form of government, and 
shall protect each of them against invasion; and on the applica- 
tion of the legislature or of the executive when the legislature can- 
not be convened) against domestic violence. 

Under this article of the constitution it rests with congress to 
decide what government is the established one in a State. For 
as the United States guarantee to each State a republican govern- 
ment, congress must necessarily decide what government is estab- 
lished in the State before it can determine whether it is republican 
or not. And when the senators and representatives of a State are 
admitted into the councils of the Union, the authority of the gov- 
ernment under which they are appointed, as well as its republican 
character, is recognized by the proper constitutional authority. 
And its decision is binding on every other department of the gov- 
ernment, and could not be questioned in a judicial tribunal. It 
is true that the contest in this case did next last long enough to 
bring the matter to this issue; and as no senators or representatives 
were elected under the authority of the government of which Mr. 
Dorr was the head, congress was not called upon to decide the con- 
troversy. Yet the right to decide is placed there, and not in the 
courts. 

So, too, as relates to the clause in the above-mentioned article of 
the constitution, providing for cases of domestic violence. It 
rested with congress, too, to determine upon the means proper to 
be adopted to fulfill this guarantee. They might, if they had 
deemed it most advisable to do so, have placed it in the power of 
a court to decide when the contingency had happened which re- 
quired the federal government to interfere. But congress thought 
otherwise, and no doubt wisely; and by the act of February 28, 
1795, provided that, "in case of an insurrection in any State 
against the government thereof, it shall be lawful for the Presi- 
dent of the United States, on application of the legislature of such 
State or of the executive, when the legislature cannot be con- 
vened, to call forth such number of militia of any other State or 
States, as may be applied for, as he may judge sufficient to sup- 
press such insurrection." 

By this act, the power of deciding whether the exigency had 
arisen upon which the government of the United States is bound 



LUTHER V. BORDEN. G49 

to interfere, is given to the President. He is to act upon the appli- 
cation of the legislature, or of the executive, and consequently he 
must determine what body of men constitute the legislature, and 
who is the governor, before he can act. The fact that both parties 
claim the right to the government, cannot alter the case, for both 
cannot be entitled to it. If there is an armed conflict, like the one 
of which we are speaking, it is a case of domestic violence, and 
one of the parties must be in insurrection against the lawful gov- 
ernment. And the President must, of necessity, decide which is 
the government, and which party is unlawfully arrayed against it, 
before he can perform the duty imposed upon him by the act of 
congress. 

After the President has acted and called out the militia, is a 
circuit court of the United States authorized to inquire whether 
his decision was right? Could the court, while the parties were 
actually contending in arms for the possession of the government, 
call witnesses before it, and inquire which party represented a ma- 
jority of the people? If it could, then it would become the duty of 
the court (provided it came to the conclusion that the PresFdent 
had decided incorrectly) to discharge those who were arrested or 
detained by the troops in the service of the United States, or the 
government which the President was endeavoring to maintain. If 
the Judicial power extends so far, the guarantee contained in the 
constitution of the United States is a guarantee of anarchy, and 
not of order. Yet if this right does not reside in the courts when 
the conflict is raging — if the judicial power is, at that time, bound 
to follow the decision of the political, it must be equally bound 
when the contest is over. It cannot, when peace is restored, pun- 
ish as offenses and crimes the acts which it laefore recognized, and 
was bound to recognize, as lawful. 

It is true that in this case the militia were not called out by 
the President. But upon the application of the governor under 
the charter government, the President recognized him as the 
executive power of the State, and took measures to call out the 
militia to support his authority, if it should be found necessary 
for the general government to interfere; and it is admitted in the 
argument that it was the knowledge of this decision that put an 
end to the armed opposition to the charter government, and pre- 
vented any further efforts to establish by force the proposed con- 
stitution. The interference of the President, therefore, by an- 
nouncing his determination, was as effectual as if the militia had 
been assembled under his orders. And it should be equally au- 
thoritative. For certainly no court of the United States, with a 



G50 CASES ON CONSTITUTIONAL LAW. 

knowledge of this decision, would have been justified in recogniz- 
ing the opposing party as the lawful goYernment, or in treating as 
wrong-doers or insurgents the officers of the government which 
the President had recognized, and was prepared to support by an 
armed force. In the case of foreign nations, the government ac- 
knowledged by the President is always recognized in the courts of 
justice. And this principle has been applied by the act of congress 
to the sovereign States of the Union. 

It is said that this power in the President is dangerous to liberty, 
and may be abused. All power may be abused if placed in un- 
worthy hands. But it would be difficult, we think, to point out 
any other hands in which this power would be more safe, and at 
the same time equally effectual. Wlien citizens of the same State 
are in arms against each other, and the constituted authorities 
unable to execute the laws, the interposition of the United States 
must be prompt, or it is of little value. The ordinary course of 
proceedings in courts of justice would be utterly unfit for the 
crisis. And the elevated office of the President, chosen as he is by 
the people of the United States, and the high responsibility he 
could not fail to feel when acting in a case of so much moment, 
appear to furnish as strong safeguards against a wilful abuse of 
power as human prudence and foresight could well provide. At 
all events, it is conferred upon him by the constitution and laws 
of the United States, and must, therefore, be respected and en- 
forced in its judicial tribunals. 

A question very similar to this arose in the case of Martin v. 
Mott, 12 Wheat., 29-31. The first clause of the first section of the 
act of February 28, 1795, of which we have been speaking, author- 
izes the President to call out the militia to repel invasion. It is 
the second clause in the same section which authorizes the call to 
suppress an insurrection against a state government. The power 
given to the President in each case is the same, with this differ- 
ence only, that it cannot be exercised by him in the latter case, 
except upon the application of the legislature or executive of the 
State. The case above mentioned arose out of a call made by the 
President, by virtue of the power conferred by the first clause; and 
the court said that "whenever a statute gives a discretionary power 
to any person, to be exercised by him upon his own opinion of cer- 
tain facts, it is a sound rule of construction that the statute con- 
stitutes him the sole and exclusive judge of the existence of those 
facts." The grounds upon which that opinion is maintained are 
set forth in the report, and, we think, are conclusive. The same 
principle applies to the case now before the court. Undoubtedly, 



LUTHER V. BORDEN. 651 

if the President, in exercising tliis power, shall fall into error, or 
invade the rights of the people of the State, it would be in the 
power of congress to apply the proper remedy. But the courts 
must administer the law as they find it. . . . 

The remaining question is, whether the defe_ndantSi^acting_under 
military orders issued under the authority of the government, were 
iustlEed^n breaking and entering the plaintiff's house. In rela- 
tion to the act of the legislature declaring martial law, it is not 
necessary in the case before us to inquire to what extent, nor under 
what circumstances, that power may be exercised by a State. Un- 
questionably, a military government, established as the perma- 
nent government of the State, would not be a republican govern- 
ment, and it would be the duty of congress to overthrow it. But 
the law of Ehode Island evidently contemplated no such govern- 
ment. It was intended merely for the crisis, and to meet the peril 
in which the existing government was placed by the armed resist- 
ance to its authority. It was so understood and construed by the 
state authorities. And unquestionably, a State may use its mili- 
tary power to put down an armed insurrection, too strong to be 
controlled by the civil authority. The power is essential to the 
existence of every government, essential to the preservation of 
order and of free institutions, and is as necessary to the S-tates of 
this Union, as to any other government. The State itself must 
determine what degree of force the crisis demands. And if the 
government of Rhode Island deemed the armed opposition so for- 
midable, and so ramified throughout the State as to require the 
use of its military force and the declaration of martial law, we 
see no ground upon which this court can question its authority. It 
was a state of war, and the established government resorted to the 
rights and usages of war to maintain itself, and to overcome the 
unlawful opposition. And in that state of things, the officers 
engaged in its military service might lawfully arrest any one, who, 
from the information before them, they had reasonable grounds 
to believe was engaged in the insurrection, and might order a 
house to be forcibly entered and searched, when there were reason- 
able grounds for supposing he might be there concealed. Without 
the power to do tliis, martial law and the military array of the 
government would be mere' parade, and rather encourage attack 
than repel it. No more force, however, can be used than is neces- 
sary to accomplish the object. And if the power is exercised for 
the purposes of oppression, or any injury wilfully done to person 
or property, the party by whom, or by whose order, it is commit- 
ted, would undoubtedly be answerable. . . . 



653 CASES ON CONSTITUTIONAL LAW. 

Mucli of the argument on the part of the plaintiff turned upon 
political rights and political questions^ upon which the court has 
been urged to express an opinion. We decline doing so. The high 
power has been conferred on this court of passing judgTQent upon 
the acts of the state sovereignties, and of the legislative and execu- 
tive branches of the federal government, and of determining 
whether they are beyond the limits of power marked out for them 
respectively by the constitution of the United States. This tribunal, 
therefore, should be the last to overstep the boundaries which limit 
its own jurisdiction. And while it should always be ready to meet 
any question confided to it by the constitution, it is equally its 
duty not to pass beyond its appropriate sphere of action, and to 
take care not to involve itself in discussions which properly belong 
to other forums. No one, we believe, has ever doubted the propo- 
sition, that, according to the institutions of this country, the sov- 
ereignty in every State resides in the people of the State, and 
that they may alter and change their form of government at their 
own pleasure. But whether they have changed it or not, by 
abolishing an old government, and establishing a new one in its 
place, is a question to be settled by the political power. And when 
that power has decided, the courts are bound to take notice of its 
decision, and to follow it. 

The judgment of the circuit court must, therefore, le affirmed. 



STATE OF MISSISSIPPI v. JOHXSOX, President. 

4 Wallace, 475. Decided 1866. 

This was a motion made by Messrs. Sharkey and E. J. "Walker,- 
on behalf of the State of Mississippi, for leave to file a bill in 
the name of the State praying this court perpetually to enjoin 
and restrain Andrew Johnson, a citizen of the State of Tennessee 
and President of the United States, and his officers and agents 
appointed for that purpose, and especially E. 0. C. Ord, assigned 
as military commander of the district where the State of Missis- 
sippi is, from executing or in any manner carrying out two acts 
of Congress named in the bill, one "An act for the more efficient 
government of the rebel states," passed March 2d, 1867, not- 
withstanding the President's veto of it as unconstitutional, and 



MISSISSIPPI V. JOHNSON. 653 

the other an act supplementary to it, passed in the same way 
March 23d, 1867; acts commonly called the Reconstruction Acts. 

The former of these acts, reciting that no legal State governments 
or adequate protection for life or property now exists in the rebel 
States of Virginia, North Carolina, South Carolina, Georgia, Missis- 
sippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that 
it was necessary that peace and good order should be enforced in 
them until loyal and republican State governments could be legally 
established, divided the States named into five military districts, 
and made it the duty of the President to assign to each one an 
officer of the army, and to detail a sufficient military force to 
enable him to perform his duties and enforce his authority within 
his district. It made it the duty of this officer to protect all 
persons in their rights, to suppress insurrection, disorder, vio- 
lence, and to punish, or cause to be punished, all disturbers of the 
public peace and criminals, either through the local civil tribunals 
or through military commissions, which the act authorized. It 
provided, further, that on the formation of new constitutions and 
certain conditions which the act prescribed, the States respectively 
shall be declared entitled to representation in Congress and the 
preceding part of the act become inoperative; and that until they 
were so admitted any civil governments which might exist in them 
should be deemed provisional only, and subject to the paramount 
authority of the United States, at any time to abolish, modify, 
control, or supersede it. 

The second of the two acts related chiefly to the registration of 
voters who were to form the new constitutions of the States in 
question. 

The bill set out the political history of Mississippi so far as 
related to its having become one of the United States; and "that 
forever after it was impossible for her people, or for the State 
in its corporate capacity, to dissolve that connection with the other 
States, and that any attempt to do so by secession or otherwise 
was a nullity;" and she "now solemnly asserted that her connec- 
tion with the Federal government was not in anywise thereby de- 
stroyed or impaired;" and she averred and charged "that the Con- 
gress of the United States cannot constitutionally expel her from 
the Union, and that any attempt which practically does so is 
a nullity." . . . [Here follows an extract from the bills.] 

It then charged that, from information and belief, the said 
Andrew Johnson, President, in violation of the Constitution, and 
in violation of the sacred rights of the States, would proceed, not- 
withstanding his vetoes, and as a mere ministerial duty, to the 



654 CASES ON CONSTITUTIONAL LAW. 

execution of said acts, as though they were the law of the land, 
which the vetoes prove he would not do if he had any discretion, 
or that in doing so he performed anything more than a mere 
ministerial duty; and that with the view to the execution of 
said acts he had assigned General E. 0. C. Ord to the command 
of the States of Mississippi and Arkansas. 

Upon an intimation made a few days before by Mr. Sharkey, 
of his desire to file this bill, the Attorney-General objected to it 
in limine, as containing matter not fit to be received. The Chief 
Justice then stated that while as a general thing a motion to file 
a bill was granted as of course, yet if it was suggested that the bill 
contained scandalous or impertinent matter, or was in other re- 
spects improper to be received, the court would either examine 
the bill or refer it to a master for examination. The only matter, 
therefore, which would now be considered was the question of 
leave to file the bill 

The Chief Justice delivered the opinion of the court. . . . 

A motion was made, some days since, in behalf of the State 
of Mississippi, for leave to file a bill in the name of the State, 
praying this court to perpetually enjoin and restrain Andrew 
Johnson, President of the United States, and E. 0. C. Ord, general 
commanding in the District of Mississippi and Arkansas, from 
executing, or in any manner carrying out, certain acts of Con- 
gress therein named. 

The acts referred to are those of March 2d, and March 23d, 
1867, commonly known as the Eeconstruction Acts. 

The Attorney-General objected to the leave asked for, upon 
the ground that no bill which makes a President a defendant, 
and seeks an injunction against him to restrain the performance 
of his duties as President, should be allowed to be filed in this 
court. 

This point has been fully argued, and we will now dispose of it. 

We shall limit our inquiry to the question presented by the 
objection, without expressing any opinion on the broader issues 
discussed in argument, whether, in any case, the President of the 
United States may be required, by the process of this court, to 
perform a purely ministerial act under a positive law, or may be 
held amenable, in any case, otherwise than by impeachment for 
crime. 

The single point which requires consideration is this: Can the 
President be restrained by injunction from carrying into effect 
an act of Congress alleged to be unconstitutional? 



MISSISSIPPI V. JOHNSON. 655 

It is assumed by the counsel for the State of Mississippi, that 
the President, in tlie execution of the Eeconstruction Acts, is re- 
quired to perform a mere ministerial duty. In this assumption 
there is, we think, a confounding of the terms ministerial and 
executive, which are by no means equivalent in import. 

A ministerial duty, the performance of which may, in proper 
cases, be required of the head of a department, by judicial process, 
is one in respect to which nothing is left to discretion. It is a 
simple, definite duty, arising under conditions admitted or proved 
to exist, and imposed by law. 

The case of Marbury v. Madison, Secretary of State,^ furnishes 
an illustration. A citizen had been nominated, confirmed, and 
appointed a justice of the peace for the District of Columbia, and 
his commission had been made out, signed, and sealed. Nothing 
remained to be done except delivery, and the duty of delivery was 
imposed by law on the Secretary of State. It was held that the 
performance of this duty might be enforced by mandamus issuing 
from a court having jurisdiction. 

So, in the case of Kendall, Postmaster-General, v. Stockton & 
Stokes,^ an act of Congress had directed the Postmaster-General 
to credit Stockton & Stokes with such sums as the Solicitor of 
the Treasury should find due to them; and that officer refused to 
credit them with certain sums, so found due. It was held that 
the crediting of this money was a mere ministerial duty, the per- 
formance of which might be judicially enforced. 

In each of these cases nothing was left to .discretion. There was 
no room for the exercise of judgment. The law required the per- 
formance of a single specific act; and that performance, it was 
held, might be required by mandamus. 

Very different is the duty of the President in the exercise of 
the power to see that the laws are faithfully executed, and among 
these laws the acts named in the bill. By the first of these acts 
he is required to assign generals to command in the several mili- 
tary districts, and to detail sufficient military force to enable 
such officers to discharge their duties under the law. By the sup- 
plementary acts, other duties are imposed on the several command- 
ing generals, and these duties must necessarily be performed under 
the supervision of the President as commander-in-chief. The duty 
thus imposed on the President is in no just sense ministerial. It is 
purely executive and political. 

An attempt on the part of the judicial department of the gov- 
ernment to enforce the performance of such duties by the Presi- 
1 1 Cranch, 137. - 12 Peters, 527. 



656 CASES ON CONSTITUTIONAL LAW. 

dent might be justly characterized, in the language of Chief Jus- 
tice Marshall, as "an absurd and excessive extravagance." 

It is true that in the instance before us the interposition of the 
court is not sought to enforce action by the Executive under con- 
stitutional legislation, but to restrain such action under legisla- 
tion alleged to be unconstitutional. But we axe unable to per- 
ceive that this circumstance takes the case out of the general 
principles which forbid judicial interference with the exercise of 
Executive discretion. 

It was admitted in the argument that the application now made 
to us is without a precedent; and this is of much weight against it. 

Had it been supposed at the -bar that this court would, in any 
case, interpose, by injunction, to prevent the execution of an un- 
constitutional act of Congress, it can hardly be doubted that appli- 
cations with that object would have been heretofore addressed to it. 

Occasions have not been wanting. 

The constitutionality of the act for the annexation of Texas 
was vehemently denied. It made important and permanent changes 
in the relative importance of States and sections, and was by many 
supposed to be pregnant with disastrous results to large interests 
in particular States. But no one seems to have thought of an ap- 
plication for an injunction against the execution of the act by 
the President. 

And yet it is ditficult to perceive upon what principle the appli- 
cation now before us can be allowed and similar applications in 
that and other cases have been denied. 

The fact that no such application was ever before made in any 
case indicates the general judgment of the profession that no such 
application should be entertained. 

It will hardly be contended that Congress [the courts?] can 
interpose, in any case, to restrain the enactment of an unconsti- 
tutional law; and yet how can the right to judicial interposition 
to prevent such an enactment, when the purpose is evident and 
the execution of that purpose certain, be distinguished, in prin- 
ciple, from the right to such interposition against the execution 
of such a law by the President ? 

The Congress is the legislative department of the government; 
the President is the executive department. ' IST either can be re- 
strained in its action by the judicial department; though the 
acts of both, when performed, are, in proper cases, subject to its 
cognizance. 

The impropriety of such interference will be clearly seen upon 
consideration of its possible consequences. 



MISSISSIPPI V. JOHNSON. 657 

Suppose the bill filed and the injunction prayed for allowed. 
If the President refuse obedience, it is needless to observe that 
the court is without power to enforce its process. If, on the other 
hand, the President complies with the order of the court and 
refuses to execute the acts of Congress, is it not clear that a col- 
lision may occur between the executive and legislative departments 
of the government? May not the House of Eepresentatives im- 
peach the President for such refusal? And in that case could this 
court interfere, in behalf of the President, thus endangered by 
compliance with its mandate, and restrain by injunction the Senate 
of the United States from sitting as a court of impeachment? 
Would the strange spectacle be offered to the public world of an 
attempt by this court to arrest proceedings in that court ? 

These questions answer themselves. 

It is true that a State may file an orisrinal bill in this court. And 
it may be true, in some cases, that such a bill may be filed against 
fhe United States. But we are fully satisfied that this court 
has no jurisdiction of a bill to enjoin the President in the per- 
formance of his official duties; and that no such bill ought to be 
received by us. 

It has been suggested that the bill contains a prayer that, if 
the relief sought cannot be had against Andrew Johnson, as Presi- 
dent, it may be granted against Andrew Johnson as a citizen of 
Tennessee. But it is plain that relief as against the execution of 
an act of Congress by Andrew Johnson, is relief against its execu- 
tion by the President. A bill praying an injunction against the 
execution of an act of Congress by the incumbent of the presi- 
dential office cannot be received, whether it describes him as Presi- 
dent or as a citizen of a State. 

The motion for leave to file the bill is, therefore. Denied. 

Note. — Whether any particular class of Indians are still to be 
regarded as a tribe, or have ceased to hold the tribal relation, is 
primarily a question for the political departments of the govern- 
ment, and if they have decided it, this court will follow their 
lead. United States v. Holliday, 3 Wallace, 407. 

It belongs exclusively to the government to recognize the polit- 
ical existence of new foreign states, and until it does so, courts 
must consider the old state of things as remaining. Gelston v. 
Hoyt, 3 Wheaton, 246. 

In a controversy between the United States and a foreign sov- 
ereign as to boundary, this court must follow the decision of that 
department of the government intrusted by the constitution with 
42 



658 CASES ON CONSTITUTIONAL LAW. 

the care of its foreign relations, especially if sanctioned by the 
legislative power. Foster v. ISTeilson, 2 Peters, 253. 

A bill in equity filed by one of the United States to enjoin the 
Secretary of "War and other officers who represent the Executive 
authority of the United States from carrying into execution cer- 
tain acts of Congress, on the ground that such execution would 
annul and totally abolish the existing State government of the 
State and establish another and different one in its place — in other 
words, would overthrow and destroy the corporate existence of the 
State by depriving it of all means and instrumentalities whereby its 
existence might, and otherwise would, be maintained — calls for 
judgment upon a political question, and will therefore not be 
entertained by this court. State of Georgia v. Stanton, 6 Wal- 
lace, 50. 

The President, in a message to congress, and in the correspond- 
ence carried on with the government of Buenos Ayres, having 
denied the jurisdiction of that country over the Falkland Islands, 
the courts must take the fact so to be. "Williams v. Suffolk Insur- 
ance Co., 13 Peters, 415. 

Wlio is the sovereign, de jure or de facto, of a territory is not 
a judicial but a political question, the determination of which by 
the legislative and executive departments of any government con- 
clusively binds the judges, as well as all other officers, citizens and 
subjects of that government. Jones v. United States, 137 U. S., 
20^. 



XVI. ENFORCEMENT OF EXECUTIVE POWER 
BY JUDICIAL PROCESS. 



In re debs, Petitionee. 
158 U. S., 564. Decided 1895. 

[On July 2, 1894, the district attorney for the Northern District 
of Illinois, acting under the direction of the Attorney-General 
of the United States, filed a bill of complaint in the Circuit Court 
of the United States for the Northern District of Illinois against 
these petitioners and others. The bill averred that the twenty-two 
railroads named therein were engaged in the business of inter- 
state commerce and also that each of them was under contract 
to carry the United States mails; that four of the defendants 
were officers of the American Eailway Union; that these four offi- 
cers combined with others to compel an adjustment of a dispute 
between the Pullman Palace Car Company and its employes by 
boycotting the cars of the company; that to make the boycott 
effective, they had prevented certain of the railroads running 
out of Chicago from operating their trains, and were combining 
to extend such boycott against the Pullman cars by causing strikes 
among employes of all roads attempting to haul the same; that 
the defendants and others unknown proceeded by collecting to- 
gether in large numbers, by threats, intimidation, force and vio- 
lence, to prevent the said railways from employing other persons 
to fill the vacancies aforesaid; that the defendants and others 
unknown did with force and violence obstruct, derail, and wreck 
the engines and trains of the said railways, both passenger and 
freight, engaged in interstate commerce and in carrying the United 
States mails. Following these allegations was a prayer for an in- 
junction. The court thereupon ordered an injunction command- 
ing the defendants "and all persons combining and conspiring with 
them, and all other persons whomsoever absolutely to desist and 
refrain from" doing the unlawful acts specified in the bill. The 
injunction was served on those of the defendants who are here as 

659 



660 CASES ON CONSTITUTIONAL LAW. 

petitioners. On July 17 the district attorney filed an informa- 
tion for an attachment against the four defendants^ and on August 
1 a similar information against the other petitioners. A hearing 
was had before the Circuit Court^, and on December 14, these peti- 
tioners were found guilty of contempt and sentenced to imprison- 
ment in the county jail for terms varying from three to six months. 
Having been committed to Jail, they on January 14, 1895, applied 
to this court for a writ of error and also a writ of habeas corpus. 
The former was denied on the ground that the order of the Circuit 
Court was not a final judgment or decree. The latter is now to 
be considered.] 

Mr. Justice Beewee . . . delivered the opinion of the 
court. 

The case presented by the bill is this: The United States, 
finding that the interstate transportation of persons and property, 
as well as the carriage of the mails, is forcibly obstructed, and that 
a combination and conspiracy 'exists to subject the control of such 
transportation to the will of the conspirators, applied to one of 
their courts, sitting as a court of equity, for an injunction to re- 
strain such obstruction and prevent carrying into effect such con- 
spiracy. Two questions of importance are suggested: First. Are 
the relations of the general government to interstate commerce and 
the transportation of the mails such as to authorize a direct inter- 
ference to prevent a forcible obstruction thereof? Second. If 
authority exists, as authority in government implies both power 
and duty, has a court of equity jurisdiction to issue an injunction 
in aid of the performance of such duty? 

First. What are the relations of the general government to 
interstate commerce and the transportation of the mails? They 
are those of direct supervision, control, and management. While 
under the dual system which prevails with us the powers of gov- 
ernment are distributed between the State and the Nation, and 
while the latter is properly styled a government of enumerated 
powers, yet within the limits of such enumeration it has all the 
attributes of sovereignty, and, in the exercise of those enumerated 
powers, acts directly upon the citizen, and not through the inter- 
mediate agency of the State. 

"The government of the Union, then, is, emphatically and truly, 
a government of the people. In form and in substance it emanates 
from them. Its powers are granted by them, and are to be exer- 
cised directly on them, and for their benefit." 

"ISTo trace is to be found in the Constitution of an intention to 



IN RE DEBS, PETITIONER. GGl 

create a dependence of the government of the Union on those of 
the States, for the execution of the great powers assigned to it. Its 
means are adequate to its ends, and on those means alone was 
it expected to rely for the accomplishment of its ends. To impose 
on it the necessity of resorting to means which it cannot control, 
which another government may furnish or withhold, would render 
its course precarious, the result of its measures uncertain, and cre- 
ate a dependence on other governments, which might disappoint 
its most important designs, and is incompatible with the language 
of the Constitution." Chief Justice Marshall in McCulloch v. 
Maryland, 4 Wheat, 316, 405, 424. 

"Both the States and the United States existed before the Con- 
stitution. The people, through that instrument, established a more 
perfect union by substituting a national government, acting, with 
ample power, directly upon the citizens, instead of the confederate 
government, which acted with powers, greatly restricted, only upon 
the States." Chief Justice Chase in Lane County v. Oregon, 7 
Wall., 71, 76. 

"We hold it be an incontrovertible principle, that the govern- 
ment of the United States may, by means of physical force, exer- 
cised through its official agents, execute on every foot of American 
soil the powers and functions that belong to it. This necessarily 
involves the power to command obedience to its laws, and hence 
the power to keep the peace to that extent. 

"This powe.r to enforce its laws and to execute its functions in 
all places does not derogate from the power of the State to execute 
its laws at the same time and in the same places. The one does 
not exclude the other, except where both cannot be executed at 
the same time. In that case, the words of the Constitution itself 
show which is to yield. 'This Constitution, and all laws which 
shall be made in pursuance thereof, . . . shall be the supreme 
law of the land.' " Mr. Justice Bradley in Ex parte Siebold, 100 
U. S., 371, 395. . . . 

Among the powers expressly given to the national government 
are the control of interstate commerce and the creation and man- 
agement of a post office system for the nation. . . . [Here 
follows a consideration of the statutes passed in the exercise of 
these powers.] 

Obviously these powers given to the national government over 
interstate commerce and in respect to the transportation of the 
mails were not dormant and unused. Congress had taken hold 
of these two matters, and by various and specific acts had assumed 
and exercised the powers given to it, and was in full discharge 



662 CASES ON CONSTITUTIONAL LAW. 

of its duty to regulate interstate commerce and carry the mails. 
The validity of such exercise and the exclusiveness of its con- 
trol had been again and again presented to this court for consider- 
ation. It is curious to note the fact that in a large proportion of 
the cases in respect to interstate commerce brought to this court 
the question presented was of the validity of state legislation in its 
bearings upon interstate commerce, and the uniform course of de- 
cision has been to declare that it is not within the competency 
of a State to legislate in such a manner as to obstruct interstate 
commerce. If a State with its recognized powers of sovereignty 
is impotent to obstruct interstate commerce, can it be that any 
mere voluntary association of individuals within the limits of that 
State has a power which the State itself does not possess? 

As, under the Constitution, power over interstate commerce and 
the transportation of the mails is vested in the national govern- 
ment, and Congress by virtue of such grant has assumed actual 
and direct control, it follows that the national government may 
prevent any unlawful and forcible interference therewith. But 
how shall this be accomplished? Doubtless, it is within the com- 
petency of Congress to prescribe by legislation that any interference 
with these matters shall be offenses against the United States, and 
prosecuted and punished by indictment in the proper courts. But 
is that the only remedy? Have the vast interests of the nation 
in interstate commerce, and in the transportation of the mails, no 
other protection than lies in the possible punishment of those who 
interfere with it? To ask the question is to answer it. By article 
3, section 2, clause 3, of the Federal Constitution it is provided: 
"The trial of all crimes except in cases of impeachment shall be by 
jury; and such trial shall be held in the State where the said 
crime shall have been committed." If all the inhabitants of a 
State, or even a great body of them, should combine to obstruct 
interstate commerce or the transporation of the mails, prosecutions 
for such offenses had in such a community would be doomed in 
advance to failure. And if the certainty of such failure was known, 
and the national government had no other way to enforce the free- 
dom of interstate commerce and the transportation of the mails 
than by prosecution and punishment for interference therewith, 
the whole interests of the nation in these respects would be at 
the absolute mercy of a portion of the inhabitants of that single 
State. 

But there is no such impotency in the national government. The 
entire strength of the nation may be used to enforce in any part of 
the land the full and free exercise of all national powers and the 



IN RE DEBS, PETITIONER. 663 

security of all rights entrusted by the Constitution to its care. 
The strong arm of the national government may be put forth to 
brush away all obstructions to the freedom of interstate commerce 
or the transportation of the mails. If the emergency arises, the 
army of the Nation, and all its militia, are at the service of the 
Nation to compel obedience 'to its laws. 

But passing to the second question, is there no other alternative 
than the use of force on the part of the executive authorities when- 
ever obstructions arise to the freedom of interstate commerce or the 
transportation of the mails? Is the army the only instrument 
by which rights of the public can be enforced and the peace of the 
nation preserved? Grant that any public nuisance may be forcibly 
abated either at the instance of the authorities, or by any individ- 
ual suffering private damage therefrom, the existence of this right 
of forcible abatement is not inconsistent with nor does it destroy 
the right of appeal in an orderly way to the courts for a judicial 
determination, and an exercise of their powers by writ of injunc- 
tion and otherwise to accomplish the same result. . . . 

So, in the case before us, the right to use force does not exclude 
the right of appeal to the courts for a judicial determination and 
for the exercise of all their powers of prevention. Indeed, it is more 
to the praise than to the blame of the government, that, instead 
of determining for itself questions of right and wrong on the 
part of these petitioners and their associates and enforcing that 
determination by the club of the policeman and the'bayonet of the 
soldier, it submitted all those questions to the peaceful determina- 
tion of judicial tribunals, and invoked their consideration and 
judgment as to the measure of its rights and powers and the cor- 
relative obligations of those against whom it made complaint. And 
it is equally to the credit of the latter that the judgment of those 
tribunals was by the great body of them respected, and the troubles 
which threatened so much disaster terminated. 

Neither can it be doubted that the government has such an 
interest in the subject-matter as enables it to appear as party 
plaintiff in this suit. It is said that equity only interferes for the 
protection of property, and that the government has no property 
interest. A sufficient reply is that the United States have a prop- 
erty in the mails, the protection of which was one of the purposes 
of this bill. . . . 

We do not care to place our decision upon this ground alone. 
Every government, entrusted, by the very terms of its being, with 
powers and duties to be exercised and discharged for the general 
welfare, has a right to apply to its own courts for any proper assist- 



664 CASES ON CONSTITUTIONAL LAW. 

ance in the exercise of the one and the discharge of the other, and 
it is no sufficient answer to its appeal to one of those courts that 
it has no pecuniary interest in the matter. The obligation which 
it is under to promote'the interest of all, and to prevent the wrong- 
doing of one resulting in injury to the general welfare, is often 
of itself sufficient to give it standing in the court. [Here fol- 
lows a discussion of United States v. San Jacinto Tin Co., 125 
U. S., 373, 285, and United States v. Bell Telephone Company, 
128 U. S., 315, 367.] 

It is obvious from these decisions that while it is not the prov- 
ince of the government to interfere in any mere matter of private 
controversy between individuals, or to use its great powers to 
enforce the rights of one against another, yet, whenever the wrongs 
complained of are such as affect the public at large, and are in 
respect of matters which by the Constitution are entrusted to the 
care of the ISTation, and concerning which the jSTation owes the 
duty to all the citizens of securing to them their common rights, 
then the mere fact that the government has no pecuniary interest 
in the controversy is not sufficient to exclude it from the courts, 
or prevent it from taking measures therein to fully discharge those 
constitutional duties. 

The national government, given by the Constitution power to 
regulate interstate commerce, has by express statute assumed Juris- 
diction over such commerce when carried upon railroads. It is 
charged, therefore, with the duty of keeping those highways of 
interstate commerce free from obstruction, for it has always been 
recognized as one of the powers and duties of a government to 
remove obstructions from the highway under its control. 

As said in Gilman v. Philadelphia, 3 Wall., 713, 724: "The 
power to regulate commerce comprehends the control for that 
purpose, and to the extent necessary, of all the navigable waters of 
the United States which are accessible from a State other than those 
in which they lie. For this purpose they are the public property 
of the nation, and subject to all the requisite legislation by Con- 
gress. This necessarily includes the power to keep them open 
and free from any obstruction to their navigation, interposed 
by the States or otherwise; to remove such obstructions when 
they exist; and to provide, by such sanctions as they may deem 
proper, against the occurrence of the evil and for the punish- 
ment of the offenders. For these purposes, Congress possesses 
all the powers which existed in the States before the adoption 
of the national Constitution, and which have always existed in the 
Parliament of England." . . . 



IN RE DEBS, PETITIONER. 665 

It is said that tlie jurisdiction heretofore exercised by the na- 
tional government over highways has been in respect to water- 
ways — the natural highways of the country — and not over artifi- 
cial highways such as railroads; but the occasion for the exercise 
by Congress of its jurisdiction over the latter is of recent date. 
Perhaps the first act in the course of such legislation is that here- 
tofore referred to, of June 14, 1866, but the basis upon which 
rests its jurisdiction over artificial highways is the same as that 
which supports it over the natural highways. Both spring from 
the power to regulate commerce. The national government has 
no separate dominion over a river within the limits of a State; its 
jurisdiction there is like that over land in the same State. Its 
control over the river is simply by virtue of the fact that it is 
one of the highways of interstate and international commerce. 
The great case of Gibbons v. Ogden, 9 Wheat., 1, 197, in which 
the control of Congress over inland waters was asserted, rested 
that control on the grant of the power to regulate commerce. The 
argument of the Chief Justice was that commerce includes naviga- 
tion, ""'and a power to regulate navigation is as expressly granted 
as if that term had been added to the word 'commerce.' " In 
order to fully regulate commerce with foreign nations it is essen- 
tial that the power of Congress does not stop at the borders of the 
nation, and equally so as to commerce among the States: 

"The power of Congress, then, comprehends navigation within 
the limits of every State in the Union, so far as that navigation 
may be, in any manner, connected with "^commerce with foreign 
nations, or among the several States, or with the -Indian tribes.' 
It may, of consequence, pass the jurisdictional line of New York, 
and act upon the very waters to which the prohibition now under 
consideration applies." 

See also Gilman v. Philadelphia, 3 Wall., 713, 725, in which 
it was said: "Wherever 'commerce among the States' goes, the 
power of the nation, as represented in this court, goes with it 
to protect and enforce its rights." 

Up to a recent date commerce, both interstate and international, 
was mainly by water, and it is not strange that both the legislation 
of Congress and the cases in the courts have been principally con- 
cerned therewith. The fact that in recent years interstate com- 
merce has come mainly to be carried on by railroads and over 
artificial highways has in no manner narrowed the scope of the 
constitutional provision, or abridged the power of Congress over 
such commerce. On the contrary, the same fullness of control 



666 CASES ON CONSTITUTIONAL LAW. 

exists in the one case as in the other, and the same power to 
remove obstructions from the one as from the other. 

Constitutional provisions do not change;, but their operation 
extends to new matters as the modes of business and the habits 
of life of the people vary with each succeeding generation. The 
law of the common carrier is the same today as when transportation 
on land was by coach and wagon, and on water by canal boat and 
sailing vessel, yet in its actual operation it touches and regulates 
transportation by modes then unknown, the railroad train and 
the steamship. Just so is it with the grant to the national gov- 
ernment of power over interstate commerce. The Constitution 
has not changed. The power is the same. But it operates today 
upon modes of interstate commerce unknown to the fathers, and 
it will operate with equal force upon any new modes of such 
commerce which the future may develop. . . . 

We have given to this case the most careful and anxious atten- 
tion, for we realize that it touches closely questions of supreme 
importance to the people of this country. Summing up our con- 
clusions, we hold that the government of the United States is 
one having jurisdiction over every foot of soil within its territory, 
and acting directly upon each citizen; that while it is a govern- 
ment of enumerated powers, it has within the limits of those 
powers all the attributes of sovereignty; that to it is committed 
power over interstate commerce and the transmission of the mail; 
that the powers thus conferred upon the national government are 
not dormant, but have been assumed and put into practical exer- 
cise by the legislation of Congress; that in the exercise of those 
powers it is competent for the nation to remove all obstructions 
upon highways^ natural or artificial, to the passage of interstate 
commerce or the carrying of the mail; that while it may be com- 
petent for the government (through the executive branch and 
in the use of the entire executive power of the nation) to forcibly 
remove all such obstructions, it is equally within its competency 
to appeal to the civil courts for an inquiry and determination as to 
the existence and character of any alleged obstructions, and if 
such are found to exist, or threaten to occur, to invoke the powers 
of these courts to remove or restrain such obstructions; that the 
jurisdiction of courts to interfere in such matters by injunction 
is one recognized from ancient times and by indubitable author- 
ity; that such jurisdiction is not ousted by the fact that the ob- 
structions are accompanied by or consist of acts in themselves vio- 
lations of the criminal law; that the proceeding by injunction 
is of a civil character, and may be enforced by proceedings in con- 



IN RE DEBS, PETITIONER, 667 

tempt; that such proceedings are not in execution of the crim- 
inal laws of the land; that the penalty for a violation of injunc- 
tion is no substitute for and no defense to a prosecution for any 
criminal offenses committed in the course of such violation; that 
the complaint filed in this case clearly showed an existing obstruc- 
tion of artificial highways for the passage of interstate commerce 
and the transmission of the mail — an^ obstruction not only tem- 
porarily existing, but threatening to continue; that under such 
complaint the Circuit Court had power to issue its process of 
injunction; that it having been issued and served on these de- 
fendants, the Circuit Court had authority to inquire whether its 
orders had been disobeyed, and when it found that they had been, 
then to proceed under section 725, Eevised Statutes, which grants 
power "to punish by fine or imprisonment, . . . disobedi- 
ence, ... by any party ... or other person, to any 
lawful writ, process, order, rule, decree or command," and enter 
the order of punishment complained of; and, finally, that, the 
Circuit Court, having full jurisdiction in the premises, its finding 
of the fact of disobedience is not open to review on habeas corpus 
in this or any other court. . . . 

The petition for a writ of habeas corpus is Denied. 

Note. — See articles by F. J. Stimson on The Modern Use of In- 
junctions, Political Science Quarterly, X. 189 (1895), and by Wil- 
liam H. Dunbar on Government by Injunction, Law Quarterly Ee- 
view, XIII., 347 (1897). The latter has been reprinted by the 
American Economic Association in Economic Studies, Vol. III., 
No. I. 



INDEX. 



Adams, Chai'les Francis, Life of Richard Henry Dana, 351. 
Adams, President John, 17. 
Aliens, Exclusion of, 596, 598, 600. 
Amendments of U. S. Constitution, 498, 510. 

Fourth, 361. 

Fifth, 133, 153, 290, 361, 468, 471, 482, 509, 540. 

Sixth, 361. 

Tenth, 125, 164, 310, 524. 

Eleventh, 616, 632, 634. 

Twelfth, 498. 

Thirteenth, 491, 498, 499, 528, 531, 558. 

Fourteenth, 290, 298, 307, 491, 501, 513, 516, 519, 523, 527, 531, 
534, 540. 

Fifteenth, 502. 
Articles of Confederation, 86, 127, 163, 323, 480, 505, 555, 591, 622, 639, 640. 

Compared with Constitution, 30. 

Government under, 173, 200, 201, 604, 610. 
Atterbury, Bishop, 375 n. 
Attorney General, 334, 335. 
Austria, Emperor of, 168. 

Baldwin, Justice, 549, 590, 595. 

Cited, 639. 
Bank of the United States, 32, 33, 142. 

Power of Congress to incorporate, 308. 
Bankruptcy, 217, 405, 406, 408, 410, 432, 433, 438, 439, 448, 450. 

In England, 446. 
Bates, Chancellor, 249. 
Belligerents, 343, 349. 
Biddle, George W., Constitutional History as Seen in American Law, 

491. 
Bills of Attainder, 372, 383, 387, 403, 440. 
Bills of Credit, 102, 103, 106, 107, 109-118, 127, 131, 156, 164, 166-169. 

Legal tender not an essential quality, 105, 128. 

Prohibition on States to issue, 112. 
See Legal Tender, Money. 
Bill of Rights, 469, 470, 539. 
Black Code, 530. 

Blackstone, Sir William, 377, 385, 402, 418, 515, 543. 
Blair, Justice, 615. 
Blockade, Effect of, 347. 

Power of President to institute, 342, 348. 

Relation of neutrals to, 343. 
Bracton, 605. 



670 INDEX. 

Bradley, Justice, 510. 

Cited, 285, 597, 660. 

Opinions by, 68, 156, 519, 571. 
Brewer, Justice, 280, 602. 

Opinion by, 660. 
Bridges, 303, 304. 
Brougham, Lord, 368. 
Brovv^n, Justice, 100. 

Bryce, American Commonwealth, 323, 490. 
Burke, Edmund, 540. 

Campbell, Justice, 488, 490, 491. 

Capture, Right of, 343. 

Carson, The Supreme Court of the United States, 351, 616. 

Catron, Justice, 55, 219, 275, 350, 488, 489, 490, 491. 

Census, Power to take, 142. 

Charges, Regulation 'cf, 291, 293, 294. 

Chase, Chief Justice, 254, 371, 394, 500, 510. 

Cited, 65, 167, 660. 

Opinions by, 46, 57, 119, 552, 570, 654. 
Chase, Justice, Opinions by, 26, 372. 
Cherokee Nation, 585, 
Chicago, 300. 

Chicago River, 302. g, 

Chinese cases, 595. 
Citizens of United States, 473, 475, 478, 489, 502. 

Privileges and immunities of, 54, 477,. 497, 504, 507, 50S, 509, 529. 

Distinguished from citizens of the States, 474, 503. 
See Negro. 
Civil rights, 467, 472, 479, 518, 526. 
Clarendon, Lord, 375 n., 388. 
Cleveland, President, 638. 
Clifford, Justice, 85, 254, 350, 518, 582. 

Cited, 89. 

Opinion by, 71. 
Coasting trade, 187. 
Coke, Sir Edward, 497, 536. 

Commerce, 46, 47, 52, 173, 175, 179, 185, 191, 193, 200, 201, 210, 215, 223, 
227, 229, 240, 241, 243, 246, 250, 253, 255, 259, 267, 270, 272, 
275, 276, 302, 312, 528, 546, 665. 

Concurrent or exclusive control of, 52, 180, 210, 242, 244, 245, 252, 
261, 270, 271. 

Control of Congress over, 179, 188, 205, 210, 213, 220, 232, 240, 244, 
245, 255, 261, 266, 298, 303. 

Control of States over, 215, 232, 254, 270, 275, 278, 280, 304. 

Foreign commerce, 178. 

Includes intercourse, 255, 261. 
navigation, 175, 177, 188, 234. 

passenger traffic, 189, 219, 222, 225, 232, 252, 254, 260. 
transportation, 249, 250, 252-254, 260, 273, 660. 

Regulation of charges not an interference with, 267, 293. 



INDEX. G71 

Commerce, continued. 

Internal commerce, 47, 205, 221, 251, 254, 261, 270, 278, 298. 

Interstate commerce, 178, 186, 249, 252, 253, 260, 261, 265, 269, 271, 
285, 286, 660, 661, 664, 666. 
Common law, 297, 538. 
Confederate States of America, 146. 
Conflict of laws, 444. 
Congress, Powers of, 162, 309, 344, 406, 527, 577, 600. 

Limitations on, 108, 325. 
Connecticut, Constitution of, 379, 542. 
Constitution of United States, 139, 538, 598, 611, 624. 

Adoption of, 309. 

Objections to, 39, 362. 

Source of, 309, 616. 

Supremacy of, 34, 37, 205, 310, 620. 
Constitutionality of legislation, 20, 21, 27, 120, 123, 126, 379, 397, 465, 
481, 519. 

Effect of invalidity of part of statute, 98. 

Presumption in favor of validity, 137, 193, 289. 
See Judicial Power. 
Construction of Constitution, 138, 148, 149, 161, 163, 174, 175, 194, 217, 
244, 282, 312, 320, 540, 617, 626, 636. 

Loose construction, 174. 

Strict construction, 174, 318. 

of legislative grants, 457, 460. 

of statutes, 120, 138, 175, 341, 3.^7, 458. 
Contract, Impairment of obligation of, 121, 133, 150, 152, 153, 164, 376, 
395, 401-403, 405, 406, 414, 423, 424, 428, 429, 432, 433, 435, 
436, 440, 454, 522. 

Is a charter a contract, 414, 416, 423, 424, 461, 464. 
Convention of 1787, 86, 164, 408, 411, 570, 588. 

Cooley, Thomas M., Constitutional History as Seen in American Law, 
615. 

Constitutional Limitations, 83 n., 84 n., 267, 537, 

On Taxation, 90. 
Corporations, 419. 

of one State may do business in another, 258. 

Liability of foreign corporations, 263. 

Power of Congress to create, 314, 320, 322. 

Power of States to tax, 264. 
Coulter, J., cited, 84. 

Coxe, Judicial Power and Unconstitutional Legislation, 24. 
Crime, Punishment of, 141, 148, 317. 
Currency, Power of Congress to provide, 62, 167. 
Curtis, Justice, 488, 489, 491. 

Cited, 537. 

Opinion by, 235. 
Cushing, Caleb, 478. 
Cushing, Justice, 32, 381. 

Opinion by, 607. 



672 INDEX. 

Dana, R. H., Jr., 350. 

Daniel, Justice, 219, 246, 487, 489, 491. 

Cited, 575. 
Dartmoutii College, 413, 416, 422. 
Dartmouth, Earl of, 416, 417. 
Davis, Justice, 63, 135, 254, 394. 

Opinion by, 351. 
Declaration of Independence, 476, 480. 
Delaware, Constitution of, 375, 378. 
Demosthenes, 604. 
Denio, J., cited, 536. 
Dillon, Municipal Corporations, 83 n. 
Domicil, 601. 
Dorr's Rebellion, 647. 

Due process of law, 80, 498, 535, 537, 540, 541, 542. < 
Dunbar, William H., Article by, 667. 
Dunmore, Governor, 369. 
Duvall, Justice, 431, 434, 450. 

Eleemosynary institutions, 416, 419, 420, 422, 425. 

Elevator charges, 289, 295. 

Elizabeth, 603. 

Ellsworth, Chief Justice, 26 n. 

Emancipation Proclamation, 499, 557. 

Embargo, 153, 176. 

Enemies' property, 348, 350. 

Error, Writ of, 625, 633. 

Executive power, 324, 332, 335, 345, 579, 655, 659. 

Enforcement of by judicial process, 659. 
Exports, 200. 
Ex post facto laws, 372, 375, 376, 379, 383, 389, 391, 403, 440. - 

See Retrospective Laws. 
Expurgatory oath, 390, 391, 393. 

Federalist, The, 24, 38, 44, 87, 93, 243, 271, 377, 616. 

Federal Government and the States, 65, 66, 182, 184, 203, 243, 322, 349, 

553, 564, 568, 571, 575, 578, 635. 
Fenwick, Sir John, 375 n. 
Ferris, 260. 267, 292. 
Field, Justice, 160, 171, 259, 273, 299, 510, 518, 582, 602. 

Cited, 276, 596, 601. 

Opinions by, 260, 299, 324, 381, 564. 
Fish, Secretary of State, 598. 
Florida, Acquisition of, 583. 
Foreign Affairs, 583. 

See International Relations. 
Forests of United States, Protection of, 333. 
France, 383, 386, 481, 529, 638. 
Freight tax, 246, 247. 
Fuller, Chief Justice, 602. 

Opinions by, 92, 270, 645. 



INDEX. 673 

Gage, General, 369. 

Gallatin, 94. 

Georgia, Constitution of, 395, 396. 

Gerry, 165. 

Gladstone, 95. 

Gorham, 165. 

Govei-nment of the United States 

distinct from State governments, 565, 568. 

extent of its jurisdiction, 257, 660, 666. 

of limited powers, 21, 83, 113, 125, 310, 320, 617, 631, 660, 666. 

organization of, 20, 125, 139, 468. 

supreme in its sphere, 310, 565, 571, 572, 581, 631, 666. 
Gray, Justice, 273, 280. 

Cited, 640. 

Opinions by, 158, 596. 
Grier, Justice, 55, 219, 488, 490, 491. 

Cited, 575. 

Opinions by, 342, 561. 

Habeas corpus. Writ of, 330, 352, 354, 358, 567. 

Suspension of, 140, 357, 366, 370. 
Hale, Lord Chief Justice, 292. 

Hamilton, Alexander, 24, 87, 93, 271, 323, 377, 393, 616. 
Harbor regulations, 212, 214, 222, 235, 238, 245, 263, 266, 270. 
Harlan, Justice, 100, 273, 280, 534, 543. 

Cited, 278. 

Opinions by, 281, 637. 
Henry IV, 603. 

Holmes, Justice 0. W., cited, 157. 
Huberus, 446. 
Hunt, Justice, 259. 
Hurd, Slavery, 89. 
Hutchinson, History of Massachusetts, 106. 

Illinois Territory, 305. 

Implied powers, 67, 125, 128, 140, 142, 156, 157, 161, 163, 167, 170, 308, 

313, 323, 330, 577. 
Imports, 194, 200, 202, 207. 

When States may tax, 197, 207, 208. 
Imposts, 193, 238. 
Indians, 544, 592, 594, 657. 

Not a State or nation, 547, 586, 589. 

Power of Congress over, 546, 548, 551, 586, 591. 
Indictment by grand jury, 535. 
Injunction, Government by, 660, 667. 
Injunction, Writ of, 654, 656, 657, 658, 660, 666, 667. 
Inspection laws, 181, 183, 194, 199, 213, 221, 227, 270, 274, 281, 284. 
International relations, 445, 583, 639, 657, 658. 
Insolvency laws. See Bankruptcy. 
Iredell, Justice, 381, 615. 

Opinion by, 29. 



674 ixDEX. 

Jackson, Justice, 100. 
Jay, Chief Justice, 94, 615. 

Opinion by, 610. 
Johnson, Justice, 45, 101, lOS, 167, 192, 405, 431, 444, 590, 627. 

Cited, 280, 537. 

Opinion hy, 444. 
Johnson, President, 500, 558, 652, 653, 654. 
Johnston, Alexander, 472, 490, 590. 
Judicial power, 21, 22, 24, 331, 335, 353, 363, 375, 378, 397, 445, 566, 585, 

599, 607, 612, 618, 623, 626, 628, 632, 663, 666. 
Judiciary, Power of to pass upon validity of legislation, 21, 22, 25, 123, 
322, 598, 656. 

to he exercised with great care, 92, 123, 155, 381, 396, 413. 

relation of Federal and State, 329, 449, 450, 564. 
Jurisdiction of United States courts, 404, 467, 472, 512, 517, 522, 544, 

553, 561, 603, 616, 618, 626, 629, 634, 635, 637, 640, 644, 657. 
Jury trial, 361, 364, 394, 515. 
Justice, Department of. See Attorney General. 
Justice, Establishment of, 132, 611. 

Kent, Chancellor, 192. 

Commentaries, 40, 72 n., 90, 494, 536. 
Kenyon, Lord, 292. 
Kildare, Earl of, 387. 
Koszta, Martin, 334, 602. 

Lamar, Justice, 645. 
Lancaster, Attainder of Earl of, 368. 

Legal tender, 105, 120, 128, 130-132, 136, 145, 146, 152, 154, 155, 167, 169, 
170, 376. 

Acts of 1862, 1863, 1878, 119, 159, 160. 

Constitutionality of, 125, 130, 135, 137, 144, 155, 160. 

Necessary and appropriate means of carrying on war, 128, 132, 
135, 144, 146. 
Legislative power, 373, 374, 399, 401, 403, 497, 559. 
Licenses, 46, 47, 48, 187, 188, 192, 204. 

may confer authority, 46, 47. 

a form of taxation, 48, 263. 
Lincoln, Attorney-General, 18, 19. 
Lincoln, President, 499, 558. 
Liquors, Sale of, 208, 209, 271, 275, 278, 280. 
Livingston, Justice, 431. 

Macaulay, 497. 

Mackintosh, Sir James, 368, 538. 
Madison, James, 17, 18, 19, 87, 93, 165. 
Magna Charta, 290, 535, 537, 539. 
Marcy, Secretary of State, 333. 598, 602. 

Marshall, Chief Justice, 84, 161, 163, 267, 272, 354, 389, 432, 434, 444, 450, 
496, 549. 



INDEX. 675 

Marshall, continued. 

Cited, 68, 92, 93, 110, 126, 138, 139, 143, 145, 146, 161, 163, 164, 166, 
171, 216, 222, 226, 228. 263, 354, 355, 356, 386, 389, 437, 439, 
459, 547, 549, 599, 639, 640, 644, 656, 660, 665. 

Opinions by, 19, 33, 41, 101, 173, 191, 308, 395, 406, 412, 467, 561, 
583, 585, 590, 627. 

Speech in Virgiuia Convention. 25, 615. 
Marshals of United States, Powers of, 336. 
Martial law, 338, 360, 363, 365, 367, 651. 
Martin Luther, 165. 
Maryland, Constitution of, 375, 377. 
Massachusetts, Constitution of, 290, 375, 377. 
Matthews, Justice, 98, 273. 

Cited, 274. 

Opinion by, 534. 
McLean, Justice, 101, 108, 219, 246,' 466, 4SS, 595. 

Cited, 306. 

Opinions by, 108, 219, 488. 
Meigs, W. M., Article by, 24. 
Merlin, 602. 
Merrick, J., 535. 
. Cited, 536. 
Migration or importation of persons, 183, 189, 227, 232, 233, 
Militia, Power of Congress over, 217, 338. 
Miller, Justice, 135, 371, 394, 563. 

Cited, 516, 640. 

Lectures on the Constitution, 323, 431, 510. 

Opinions by, 50, 79, 325, 491, 543. 
Ministerial duties, 655. 
Missouri Compromise, 480, 483, 486, 489. 
Missouri, Constitution of, 381, 386, 388, 390, 392. 
Money, Contracts to pay, 151, 152. 
Money, Power of United States to borrow, 41, 43, 166, 312. 

Power of United States to coin, 127, 149, 150, 170. 

Paper money issued by colonies, 103, 106, 109. 
issued by Congress, 106, 127. 

United States notes, 120, 129. 
Depreciation in value, 121. 

See Bills of Credit, Legal Tender. 
Monopoly, 492, 497. 
Morris, Gouverneur, 86. 
Municipal Corporations, 80. 

National banking associations, 56, 58, 166. 

Taxes imposed on, 58-60. 
Naturalization, 217, 477. 
Navigation, 240, 305, 306. 
"Necessary and proper" defined, 126, 162, 163, 315, 319. 

laws, 139, 147, 314, 315. 
Negro, 475-478, 501, 503, 512. 

Can he become a citizen, 473, 480, 489. 



676 iJs^DEX. 

Nelson, Justice, 63, 219, 350, 490, 491. 

Opinions by, 64, 484. 
Neutrality, 346. 
North Carolina, Constitution of, 375, 378. 

Officer, obligation to testify as to bis official acts, 18. 

right to his commission, 20. 
Ordinance of 1787, 132, 304, 486, 487. 
Original package, 269, 272, 273, 279. 

Paper Money. See Bills of Credit, Legal Tender, Money. 

Pardoning power, 324. 

Parliament of Great Britain, 423, 539, 664. 

Paterson, Justice, 381. 

Opinion by, 28. 
Pennsylvania, Constitution of, 375. 
Phillimore, 602. 
Pilots, 240, 241, 244, 245. 

See Harbor Regulations. 
Pitt, 95. 
Police power, 183, 185, 199, 214, 215, 221, 225, 229, 234, 252, 266, 267, 270, 

275, 276, 278, 281, 286, 289, 291, 303, 307, 494. 
Pomeroy, Constitutional Law, 90. 
Political questions, 46, 62, 97, 107, 146, 171, 346, 548, 559, 562, 578. 596, 

597, 599, 600, 602, 637, 638, 639, 647, 650, 652, 655, 657, 658. 
Political rights, 652. 

Post-offices and post roads, 255, 318, 660, 661, 666. 
President, 654. 

Military powers of, 339, 340, 341, 342, 345, 357. 

Powers and duties of, 332, 335, 337, 339, 345, 649, 655. 
Private property, not to be taken without compensation, 133, 380. 

not to be taken without due process of law, 80, 84. 134, 289, 290. 

protection of, 482, 483. 
Prize, Right of, 343. 
Property, Right of, 380. 

Public interest in private business, 292, 293, 294, 296. 
Public purpose, 85. 

Rawle, Constitution, 90. 
Raymond, J., 378. 
Rebellion, 567. 

financial condition at outbreak, 57. 

financial measures adopted during, 58. 
Reconstruction, 558, 559, 562, 652. 
Redfield, Law of Railways, 83 n. 
Reeve, History of English Lav.^ 536. 
Regulation of charges, 267, 289, 293, 295. 

Republican government guaranteed to each State, 557, 558, 648, 65L 
Reserved powers of the States, 67, 68. 
Retrospective laws, 377, 441, 454. 
Rhode Island, 369. 
Rights of life, liberty and pursuit of happiness, 385, 386. 



INDEX. 677 

San Ildefonso, Treaty of, G38, 639. 
Secession, 554, 556. 
Sergeant, Constitution, 90. 
Servitude, Involuntary, 498, 500, 529 
Sharswood, Blackstone, 90. 
Shaw, C. J.. 98, 494. 

Cited, 535. 
Slaves and Slavery, 476, 482, 484, 487, 488, 498, 528, 532, 557. 

Effect of residence in free territory, 483, 485, 488, 489. 
See Servitude, Involuntary. 
Slave trade, 227. 
Smith, Wealth of Nations, 29. 
South Carolina, Constitution of, 375. 
Specie payments. Act for resumption of, 159. 
Standard of value, 440. 
States of the Union, 554, 561. 

Position of before adoption of Constitution, 173, 383, 474, 611. 

Powers of, 290, 309, 373, 401, 406, 407, 428, 468, 474, 506, 617. 

Restrictions on, 168, 195, 375, 440, 469, 521, 609. 

Sovereignty of, 65, 577, 603, 608, 621, 632. 

Suability of, 404, 585, 603, 607, 609, 613, 615, 630, 632, 637, 643. 
Statutes of limitations, 411, 436, 438. 
etimson, F. J., Article by, 667. 
Story, Justice, 118, 220, 431, 444, 450, 590. 

Cited, 138, 346, 347, 455, 466, 650. 

Commentaries on the Constitution, 90, 122, 125, 141, 249, 272, 387, 
641. 

Opinions by, 338, 616. 
Stowell, Lord, cited, 345. 
Strafford, Earl of, 375 n. 
Strong, Justice, 299. 

Cited, 170. 

Opinions, 136, 246, 511. 
Suffrage, Right of, 478. 
Swayne, Justice, 135, 371, 394, 510. 

Cited, 664, 665. 

Opinions by, 85, 254, 563. 
Swift's Digest, 542. 

Taney, Chief Justice, 276, 350, 489, 490. 

Cited, 51, 55, 74, 291, 356, 487, 508, 548, 559, 566, 568. 

Opinions by, 204, 451, 472, 647. 
Taxation, 26, 33, 34, 79, 80, 83, 84, 86, 147, 170, 180, 181, 192, 193, 196, 197, 
199, 203, 206, 207, 214, 221, 223, 227, 228, 229, '233,' 237,' 246' 
247, 250, 259, 263, 264, 269, 312, 459. 

direct, 26-28, 30, 32, 60, 86, 88, 89, 90, 93, 94, 99. 

duties, 27, 193, 197, 199, 221, 226. 

Federal power of, 38, 39, 61. 

in aid of inspection laws, 75. 

in aid of private enterprises, 81. 

indirect, 27, 29. 



678 IXDEX. 

Taxation, continued. 

must be for public purposes, 84. 

of agencies and contracts of United States by the States, 33, 36, 
37, 40, 41, 43, 44, 54, 64, 166, 169, 322. 

of exports by States, 51, 52, 195, 238, 246. 

of incomes, 95, 97. 

of national banks, 58-60. 

of passenger traffic by States, 50, 51. 

of State agencies by United States, 64, 95. . 

of State banks, 56, 63, 167. . . 

of State franchises by United States, 61. 

of tonnage by States, 71-73, 76, 238. 

State power of, 35, 36, 39, 75, 196, 197, 224, 247, 251, 264. 
Telegraph, 256. 
Territory of United States, 481,- 488, 547, uS4. 

Power to acquire, 583. 
Test oath, 382, 384, 390. 
Texas, Constitution of, 656. 
Thayer, J. B., Articles by, 24, 157. 

Cases on Constitutional Law, 24, 490. 
Thompson, Justice, 45, 101, 108, 118, 204, 444, 450, 466, 590. 
Tonnage duties, 76, 221, 237. 
Treaty-making power, 583. 
Trimble, Justice, 444, 450. 

Union, The, 555, 562, 630, 661. 

Valuation of real and personal property in United States in 1890, 99. 
Vattel, 344, 445, 593, 602, 

"Waite, Chief Justice, 273. 
. Cited, 517. 

.Opinions by, 255, 289. 
War, 312, 338, 342, 343, 363, 566, 583, 597. 

Civil War, 344, 349, 557. 
Washington, Justice, 431, 450, 595. 

Cited, 454, 505. 

Opinion by, 432. 
Wayne, Justice, 55, 246, 371, 487, 489, 490, 491. 

Opinion by, 231. 
Webster, Noah, 355, 541. 
Weights and measures, 154. 
Wharton, Digest of International Law, 598, 602. 
White, Justice, 100. 
Wilson, Justice, 32, 615. 

Opinion by, 603. 

Speech in Pennsylvania Convention, 25. 

Works, 157, 323. 
Wirt, William, 478. 
Woodbury, Justice, 219.' 
Wooddeson, 377. 






LIBRARY OF CONGRESS 



01 1 795 440 7 



